G.R. No. L-37009. March 16, 1987
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FAUSTINO HORTELANO Y NAVARRO & JUANITO PAGANAO Y SAQUING, DEFENDANTS-APPELLANTS.
PARAS, J.:
This is an appeal interposed by the accused Faustino Hortelano y Navarro and Juanito Paganao y
Saquing from the decision of the Court of First
Instance of Kalinga-Apayao[*] in Criminal
Case No. 7-70, finding them guilty of the crime of Rape, as co-principals by
direct participation, the dispositive portion of
which, reads:
“WHEREFORE, the Court finds the accused, FAUSTINO HORTELANO Y
NAVARRO and JUANITO PAGANAO Y SAQUING guilty beyond reasonable
doubt, as co-principals, by direct participation, of the crime of rape
defined and penalized under Article 335 of the Revised Penal Code in relation to
Article 63 of the same Code and there being proved two aggravating circumstances
with only one mitigating circumstance, the Court hereby sentences each one of
them to DEATH; to jointly and severally indemnify the offended party, Marcelina Elus, the sum of
P20,000.00 for moral damages and to proportionately pay the costs.
x x x” (p. 77, Rollo, Decision)
The other accused, Joseph Lingbawan
y Condayan, who was subsequently included
with the two aforesaid accused in an amended complaint, because of his refusal
to testify in behalf of the complainant (t.s.n., p.
90) was acquitted by the trial court, finding no convincing evidence to show his
participation in the commission of the crime. (p. 77, Rollo).
The facts of the case, as found by the trial court, are briefly as
follows:
On January 16, 1970, complainant, Marcelina Elus, then a fifteen
(15) year old country lass, was staying in the boarding house of Rosalina Mahoy located at Poblacion Tabuk, Kalinga-Apayao (t.s.n., pp. 60, 66). At about 2:00 o’clock in
the afternoon of that day, while complainant was conversing with her boardmates, her third degree cousin, Juanito Paganao, arrived and told
her to go home to Pinukpuk because her mother was sick
(t.s.n., pp. 66-67). Juanito Paganao also informed her
that he will fetch her later that same afternoon
(ibid.).
At around 4:00 o’clock
in the afternoon, Paganao, together with Hortelano and Lingbawan came to
fetch the complainant in her boarding house (t.s.n.,
p. 68). She asked permission from Mrs. Mahoy to go home and requested Emilia Omang, her boardmate, to accompany her (t.s.n., pp. 68-69). They then rode on a
passenger jeep owned and driven by Hortelano.
The latter stopped the jeep by the Dangwa
Station to load some cargoes, and from there, they went towards the
market. At the market place, Hortelano
told Emilia Omang not to go
with them because Emilia’s father might scold
her. Leaving Emilia Omang behind, they proceeded towards Pinukpuk (t.s.n., pp.
69-70). Somewhere at Bulanao, they
passed by the boarding house of Sylvia Bongawen, a
niece of Hortelano, whom they said will be the
complainant’s companion, but Sylvia was not there. They continued
their journey and somewhere at barrio Tuga, Tabuk, the jeep stopped because of some alleged
defects. Paganao and Hortelano offered her a bottle of Tru-Orange and biscuits, respectively. They
stopped at said place for thirty minutes, after which they again continued their
trip. At barrio Camcamalog, Pinukpuk, the jeep stopped again because of what they
claimed to be another defect. They told the complainant to go down
and as soon as she alighted, Paganao held her two
hands and dragged her away, saying to her that he would tell her something
(ibid.). Paganao then started
kissing her, mashing her breast and holding her nipples (ibid.).
The complainant cried and shouted for help and ran towards Hortelano, who instead of helping her, did just what Paganao had done (t.s.n., pp. 71-72). After this incident, they
continued their trip but the jeep again stopped somewhere below the ranch of
Engineer Marana. There was again the excuse of another
defect. There she was told once more to alight and Paganao approached her and held her hands and dragged
her away from the jeep. She stumbled and Paganao started kissing her and at the same time mashed her
breasts. The complainant pleaded to Paganao not to molest her, they being relatives, but the
latter bluntly replied, “whatever you do you are mine
tonight” (t.s.n., pp. 73-74). When the
complainant was able to free herself from the hold of Paganao, Hortelano met her, and
again, she was subjected to indignities by Hortelano. When she was able to free herself,
she went to sit at the back seat of the jeep but Hortelano pursued her, then boxed
her in the stomach, rendering her unconscious. When she came to
her senses, Hortelano was on top of her and was having
sexual intercourse with her. She pushed and kicked Hortelano but she was too weak to put up a strong
resistance. Afterwards, she noticed that her panty was below her
knees. All this time, Paganao and Lingbawan were keeping watch at the back of the jeep that
was parked on the road (t.s.n., pp.
75-76). Having consummated his lustful desire, Hortelano called Paganao and Lingbawan and they then proceeded to Pinukpuk. The complainant was dropped at the
house of Mary Bonggawon where she spent the
night. The following morning, she went out to urinate and noticed
blood in her panty and felt pains in her stomach. Thereafter, she
requested one of her townmates to look for her brother
to whom she later related the sordid incident. They then reported
the matter to the police.
On January 19, 1970, the complainant submitted
herself for physical examination to Dr. Edilberto Fernando, Provincial Health Officer of Kalinga-Apayao Province, who reduced his findings in writing
(Exhibit “A”), to wit: (a) Swelling and marked reddening with
hematoma of the vaginal orifice; (b) Wound, lacerated,
fourchette, vaginal orifice; (c) Hymen completely
lacerated with oozing of small amount of blood; and (d) non-presence of
spermatozoa.
In his defense, appellant Hortelano declared that it was only he and Paganao who fetched the complainant at 4:00 P.M. of January
16, 1970; that Paganao alighted at Bulanao and it was only he (Hortelano) with the complainant and his niece Sylvia Bongawen (whom they passed by at Bulanao) who proceeded to Pinukpuk; that he did not box the complainant, and did not
have sexual intercourse with her, as she was seated in front of the jeep with
his niece, and there was no space at the back seat of the jeep which was
then full of baggage; that he dropped the complainant and his niece before the
crossing at the Pinukpuk junction; and that he
proceeded to the junction where he slept alone in his jeep. Hortelano also testified that the complainant had already
been his sweetheart for around one year prior to January 16, 1970; that he had
had numerous instances of sexual intercourse with her; and that said complainant charged him in court because he did not
accede to her request that he divorce his wife so he could marry her.
On the other hand, Paganao put up
alibi as his defense, claiming that he went to Tabuk, Kalinga-Apayao to
have his appointment renewed as provincial caminero; that at about 4:00 o’clock p.m. of
January 16, 1970, he boarded the jeep of Hortelano
which was then leaving Tabuk for the provincial
capital of Bulanao; that they fetched the complainant
from her boarding house because earlier that day, the latter (whom he met near
the school) told him to tell Hortelano to pick her up
as she was going on a vacation; that he never told the complainant that her
mother was sick; that on reaching Bulanao, he alighted to see the provincial governor, while
Hortelano and the complainant proceeded to Pinukpuk; that he failed to see the governor because he
found out later that the latter was in Manila; and that he proceeded to the
house of Sgt. Gunnawa where he slept that night.
Finding the clear and positive testimony of the complainant
credible, the trial court convicted the accused-appellants Hortelano and Paganao as charged,
and sentenced them to death.
The issue, therefore, rests on credibility, and after a
careful review of the evidence on record, We find no
plausible reason to hold otherwise.
The complainant’s categorical and straightforward testimony,
narrating the sequence of events that transpired and the behavior of the
appellants from the time they fetched her in her boarding house in
Tabuk, up to the time they reached Pinukpuk, is logical, probable and has the earmarks of
truth.
The complainant’s testimony, which was partially corroborated by
Mrs. Mahoy (the landlady of the boarding house) and
Ernesto Obal (a boardmate of
the complainant), clearly established that she was fetched by the
appellants at 4:00 o’clock that afternoon, and that she was molested by them on
their way to Pinukpuk. Said prosecution
witnesses positively identified the appellant, whom they already knew very well
before the incident, because appellant Hortelano’s
nieces were staying in the same boarding house, (p. 12, TSN) and appellant Paganao is witness Ernesto Obal’s
second cousin (p. 54, Rollo).
Likewise, the findings of Dr. Edilberto
Fernando, the examining physician, corroborated the testimony of the complainant
that she had been sexually abused on that fateful night.
There is no evidence to show that the complainant and the
aforesaid prosecution witnesses were actuated by any evil motive to testify
against the appellants. We cannot doubt the sincerity of the
complainant, for it is unthinkable that a young woman and a third year high
school student like her, would go to court and air a dishonorable act performed
upon her by someone if the same is not true, knowing fully well that she would
be exposing herself to public shame, embarrassment and humiliation.
(People vs. Reyes, 137 SCRA 99).
The main thrust of appellant Hortelano’s
testimony is focused on the testimony of the complainant that after she regained
consciousness, she noticed the former having sexual intercourse with her, and
that her panty was below her knees (p. 75, TSN). Appellant Hortelano claims that it was physically impossible for him
to have had sexual intercourse with the complainant, who was then fifteen
years old and presumed to be a virgin, because her panty was never removed (p.
7, Appellant Hortelano’s Brief).
There is obviously an absence of sincerity and consistency
in appellant Hortelano’s testimony.
During the trial, he testified that the complainant was
his sweetheart and that he had had sexual intercourse with her many
times. (p. 198, t.s.n.).
Moreover, the circumstances obtaining in the case at bar
negate appellant Hortelano’s proposition that it was
impossible for him to have raped the complainant. It must be
recalled that when the complainant resisted the appellants’ attempts to molest
her and went inside the jeep, appellant Hortelano
followed her and boxed her on the stomach, rendering
her unconscious. It was while complainant was lying
prostrate and defenseless when appellant Hortelano
sexually attacked her. Considering the physical state of the
complainant, she was an easy prey to his bestial instincts although her panty
was only below her knees. Furthermore, the complainant explained
that the garter of her panty was loose. Thus, on cross
examination, she testified:
“Q.
your panty ever removed from out of your body because it only reached as far as
your knees, is that right?“A. It was down below my knees, sir. “Q. So at no time was the panty ever removed from your legs, is that
correct?“A. No, sir.
xxx
“A.
knees because the garter of my panty was loose.” (pp. 102-103,
t.s.n.).
Appellant Hortelano tried to extricate
himself by alleging “. . . if what the offended party said was true to the
effect that she struggled with appellant Hortelano,
the latter must have been able to insert his fingers inside her vagina several
times, thereby causing the laceration of the hymen, the lacerated wound of the
vaginal orifice and the swelling and marked reddening with hematoma of the vaginal orifice”. (p. 10, Appellant Hortelano’s
Brief).
The vacillating nature of this defense is apparent.
At one instance, appellant Hortelano would say
that “nothing unusual happened during the trip” (p. 6,
Ibid.) and then he would say that “he must have inserted his
fingers inside her vagina several times”, thus causing the injuries (p. 10,
ibid.). Moreover, this story is not only far-fetched but
quite ridiculous.
The incredibility of appellant Hortelano’s version is further aggravated by his failure to
present his niece, Sylvia Bongawen, whom he alleged to
be with them on their trip to Pinukpuk (pp. 70, 181,
t.s.n.). Considering the gravity of the
offense charged against him, he should have presented Sylvia Bongawen to corroborate his testimony that indeed, nothing
happened between him and the complainant. The suppression of this
piece of parol evidence only leads us to inescapable
conclusion that the testimony of said witness, if produced, would tend to
sustain the charge.
On the other hand, appellant Paganao
interposed alibi as his defense, and assails the trial court’s
finding that he conspire with appellant Hortelano in the commission of the
crime.
It cannot be gainsaid that alibi is a weak defense.
In the face of the clear and positive testimony of the prosecution
witnesses, regarding his participation in the crime, his alibi dwindles into
nothingness. (People vs. Tuscano, 137 SCRA 203).
While it may be true that appellant Paganao never had coitus with the complainant, the latters’s testimony established that he was responsible in
inducing her to go with the group on the pretext that her mother was sick; that
at barrio Camcamalog, Pinukpuk, appellant Paganao told
her to alight from the jeep and then he dragged her away and started kissing
her, mashed her breasts and held her nipples; that somewhere below the ranch of
Engineer Marana, appellant Paganao repeated his
dastardly acts; that when complainant reminded him that they were relatives, he
ominously answered, “whatever you do you are mine tonight”; and that while
appellant Hortelano was having sexual intercourse with
her, appellant Pagano was somewhere on the road, at
the back of the jeep, keeping watch. His anterior, concommitant and posterior acts indicate that he
participated and confederated with appellant Hortelano
in bringing to fruition their criminal design.
Appellant Paganao argues that if
complainant’s version is true that both appellants were determined to molest
her, her natural reaction should have been to run away from her
aggressors. Instead, she went to sit at the back of the
jeep, thus manifesting such conduct which is a little short of
seduction.
On cross-examination, complainant explained the reasons for
her conduct, to wit:
xxx
“Q. “A. I rode on the jeep because I wanted to see my mother whom they say was sick
and that I trust Juanito Paganao because he is related to me.” (p.
100, t.s.n.)
xxx
Well settled is the rule that conclusions of the trial
judge, regarding the credibility of witnesses, command great respect and
consideration, specially when, as in this case, they
are supported by the evidence of record.
Under the 1987 Constitution, the death penalty has been
abolished, thus, Sec. 19 (1) thereof provides:
“Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall death penalty be
imposed, unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it. Any death penalty already imposed
shall be reduced to reclusion
perpetua.”
WHEREFORE, the judgment of conviction is
hereby AFFIRMED, but the sentence is reduced to reclusion perpetua.
SO ORDERED.
Teehankee, C.J.,
Yap, Fernan, Narvasa, Alampay, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, and
Cortes, JJ., concur.
Melencio-Herrera,
J., on leave.
[*] Penned by Judge Ricardo D.
Diaz