G.R. No. L-36530. September 29, 1983
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SEBASTIAN JERVOSO, ACCUSED-APPELLANT.
ESCOLIN, J.:
Appeal from the judgment of the Court of First Instance of Leyte, finding appellant Sebastian Jervoso
guilty of the crime of rape and sentencing him to suffer the penalty of
reclusion perpetua, to pay the offended party Amelita Austero the sum of
P2,000.00 as moral damages, and to pay the costs.
Contending that the lone and uncorroborated testimony of the
complainant falls short of the quantum of proof necessary to overcome the
constitutional presumption of innocence, appellant seeks to set aside said
judgment of conviction.
The version of
complainant Amelita Austero,
a maiden of 20 years, is that appellant, a policeman of Abuyog,
Leyte, was her neighbor at Real Street in the poblacion of Abuyog. In the evening of April 4, 1968, she was
alone in their house, preparing supper.
Her father Quirino Austero
had not yet returned from the Abuyog Emergency
Hospital where he was employed, while her mother was visiting a neighbor who
lived across the street from their house.
At 7:00 o’clock that night, Amelita went down
to fetch water from the well of a neighbor, Cresencia
Aller. On her
way thereto, she saw the appellant in a police uniform standing near the door
of his house. Appellant approached her
and immediately grabbed her left hand.
At the same time he drew his gun and, pointing it at her, warned her not
to shout. He then dragged her on the ground to the toilet of his house about 12 meters away. Inside the toilet, appellant slapped her
twice on the face and ordered her to remove her panty. When she refused, he raised her dress and
forcibly pulled down her panty which was torn in the process. At that juncture, he returned his gun into
the holster. He inÂserted his right middle finger into her sexual organ and lifted it,
causing her intense pain. Holding
her right shoulder, he tripped her with his right foot and pushed her violently
to the floor. While she was in a sitting
position, he placed his legs over her right foot and removed her panty. After unzipping his pants, he released his
right middle finger from her vagina, then spread her legs apart and inserted
his penis into her sexual organ.
According to Amelita, while the appellant was
doing the push and pull movement, “I tried to struggle, but could not free
myself because he was on top of me.”[1] She further declared that all the while that
she was being abused, she did not shout for help.[2]
After satisfying his
lust, appellant again pulled out his gun from the holster and warned her not to
tell her parents about the incident, otherwise he would kill her. Such threat notwithstanding, she informed her
mother immediately after the latter’s arrival in the house. The following day, April 5, 1968, Amelita went with her mother to Tacloban
City to attend the graduation
of her sister Aurora. They returned to Abuyog
on April 8.
On April 9, 1968, complainant and her mother reported the
incident to Mayor Traya of Abuyog. The latter, however, told them that since the
crime was a serious one, they should file their complaint with the authorities
in Tacloban City.
Thus, fifteen (15) days after the incident, or on April 19, 1968,
complainant, accompanied by her mother, proceeded to Tacloban
City where she filed a complaint with Assistant Provincial Fiscal Matol.
On April 22, 1968, complainant submitted herself to a physical
examination by Dra. Pastora
Redoña, resident physician of the Leyte
Provincial Hospital in Tacloban City. The doctor’s findings are as follows:
“Pubic hair – moderate in amount, black in color.
Hymen – only remnants and serrated.
Vaginal orifice – admits 2 fingers (3 cm.) smoothly.
Vaginal floor – with thick milky material resembling condensed
milk.
Vaginal smear – negative for sperm cells.”
Under cross-examination, Amelita was
confronted with the following testimony she had given during the preliminary
investigation conducted on May 20, 1968 beÂfore First Asst. Fiscal Zoila N. Redoña, to wit:
Atty.
Benedicto [to witness]:
Q
: You allowed him to have sexual
intercourse with you for fifteen minutes?
A
: Yes, sir.
Q
: And you reached the climax together
with him, is that correct?
A
: Yes, sir.
Q : After
that he continued pushing out and inside his penis, is that correct?
A
: No, sir.
Q: How
long did you come to a climax – after he inserted his penis inside your vagina?
A
: After fifteen minutes.
Q : After
you reached the climax, he continued pulling in and out his organ, is that
correct?
A
: (answered already)
Q :
After you reached the climax together with Jervoso
in that sexual intercourse, he continued having sexual intercourse with you, is
that correct?
A : No
more.
Complainant did not deny
that she reached a climax during her sexual intercourse with appellant.
We find the appeal impressed with merit.
It is a well-established
rule that, where the charge of rape is based solely upon the testimony of the
complainant, the Court must exercise the greatest degree of care and caution in
scrutinizing such testimony, and the person charged with the offense should not
be conÂvicted unless the complainant’s sincerity and candor are free from
suspicion.[3]
A meticulous review of
the records reveals certain significant circumstances which render
complainant’s charge of force and intimidation highly dubious and improbable.
[1] Complainant’s allegation that she was dragged on the ground
over a distance of 12 meters, that she was slapped and then pushed down to the toilet’s
floor with great force is belied by the medical findings. Dr. Redoña, who
conducted a physical examination of complainant, failed to find any abrasion,
laceration or contusion on her body. The
absence of such physical evidence casts serious doubts on the charge of force
and intimidation; for “physical evidence is proof of the highest order and
speaks more eloquently than all the witnesses put together”.[4]
[2] According to
complainant, she struggled and resisted the appellant’s advances. There is, however, nothing in her entire
testimony to describe the manner by which she struggled and resisted. Her supposed resistance, alleged in general
terms, is a mere conclusion which cannot suffice to sustain a judgment of conviction.[5]
[3] It is undisputed that during the entire incident, even after
appellant had returned his gun to its holster, complainant did not shout for
help or make any outcry,
although there were several houses close to the scene of the crime. Neither did she make any serious attempt to
prevent appellant from insertÂing his organ into her vagina. This posture passivity on her part does not
square with experience and human nature.
In the crime of rape,
alleged to have been comÂmitted by force, it is essential that the element of voluntariness on the part of the victim be absolutely
lacking. Where there is an indication
that the offended party
contributed in some way in the consummation of the sexual intercourse
or had shown any willingness, even if
half-hearted, the complaint must be dismissed.[6]
[4] On the following day, Amelita,
apparently unperturbed by her harrowing experience of the previous day,
accompanied her mother to Tacloban City to attend the
graduation of her sister. They returned
to Abuyog on April 8.
But during their four-day sojourn in Tacloban
City they did not report the crime to the fiscal’s
office. It was only on April 19, or 15
days after the incident, that complainant returned to Tacloban
to file her complaint before Asst. Provincial Fiscal Matol. Such unexplained delay in denouncing the
appellant seriously impairs her sincerity and credibility.
[5] Finally, by complainant’s own admission, she reached a climax
while she was being raped. This
circumstance disproves the charge of force and coercion, for it is well-nigh
impossible for any woman to expeÂrience orgasm while being assaulted by a
rapist.
Withal, the facts proven
at the trial failed to demonstrate to a moral certainty that appellant employed
force and intimidation.
ACCORDINGLY, the judgment of conviction is hereby set
aside, and appellant Sebastian Jervoso acquitted of
the crime charged. Cost de oficio.
SO ORDERED.
Makasiar, (Chairman), Concepcion, Jr., Relova, and Gutierrez, Jr., JJ., concur.
Aquino, J., see dissent.
Guerrero, J., joins J. Aquino
in his dissenting opinion.
Abad Santos, J., on leave.
De Castro, J., on sick leave.
[1]
TSN, May 18, 1970, p. 38.
[2]
TSN, May 18, 1970, p. 33.
[3]
People vs. Lacuna, 87 SCRA 372; People vs. Fausto,
51 Phil. 852.
[4]
People vs. Berdaje,
99 SCRA 388.
[5]
People vs. Lacuna, 87 SCRA 372.
[6]
People vs. Joven, 64 SCRA 126; People vs. de Dios, 8 Phil. 279.
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DISSENTING OPINION
AQUINO, J.:
With all due deference to the ponente’s opinion, I
dissent. I agree with Judge Jesus N.
Borromeo’s assessment that at about seven o’clock in the evening of April 4, 1968
Patrolman Sebastian Jervoso raped in his toilet his neighbor, 21-year old
Amelita Austero, whose house was only two meters away from his house where she
lived with his family in 1967.
While Amelita was no longer a virgin at the time of the rape,
this fact would not exclude the forcible sexual congress forced upon her by
Jervoso. The following findings of Judge
Borromeo are well taken:
“Analyzing carefully the testimony of complainÂant Amelita
Austero, the Court is of the opinion that accused succeeded in having carnal
knowledge of her through force and intimidation for, among other things, she
declared that after accused forced her to get inside the toilet at a point of a
gun, he slapped her twice on the face so that she felt dizzy.
“Then accused raised her dress, pulled out her pantie,
placed his finger inside her private part, tripped her feet with his right
foot, pushed her to the floor and even if she struggled to free herself, he
overpowered her so that he finally was able to insert his penis inside her
vagina.
“The Court gathers from Amelita’s testimony that all these
things were effected by accused in spite of her resistance which was of no use
considering that he had a firearm with him and he threatÂened her life. As a matter of fact, the Court believes that,
even without a weapon, accused could have overpowered Amelita to satisfy his
carÂnal desires considering that, in the estimate of the Court accused is five
feet and six and one-half inches (5′ 6-1/2″) tall and about 180 pounds in
weight while Amelita is only four feet, eight inches (4′ 8″) tall and
only about 90 pounds in weight.
“Aside from the fact that accused has failed to introduce
any evidence indicating voluntariness on the part of Amelita, the Court thinks
that there is every reason to believe that Amelita could not have voluntarily
submitted herself to the sexual desires of accused for there is no reason why
she should have done so taking into account at he was older than her by twenty
years and she very well knew that he was married since she had lived for a time
in his house as a helper.
“It may be true that, as may be gathered from Doctor
Redoña’s testimony Amelita could have had sexual intercourse with a man before
April 4, 1968 but this cannot in any manner minimize the fact that accused
forcibly attained his sexual desires on Amelita as it may be that she could
have been attracted to a younger and single man to the extent that she could
have voluntarily submitted herself to his desires, but this does, not mean that
she also voluntarily submitted herself to accused simply because she had a
previous experience:
“Incidentally, the Court thinks that Amelita’s credibility
regarding her having been raped should not be affected by her apparent
falsehood in stating that she was still virgin prior to April 4, 1968 for it is
understandable that a young woman like her will try to protect her reputation
as much as possible.
x x x x x x x x x
“Of course, the fact that Amelita Austero could have had
earlier sexual relation with a man should not in any manner diminish the
criminal resÂponsibility of accused in this case, for, according to the Supreme
Court, the character of an offended woman in the offense of rape is
immaterial. (See People vs. Blance, 45
Phil. 113).
“It, therefore, results that, finding as credence Amelita
Austero’s testimony that accused succeeded in having carnal knowledge of her
through force and intimidation on April 4, 1968, the Court has no other
alternative but to conclude that accused is criminally liable for the offense
of rape charged in this case.
“The fact that complainant Amelita Austero brought her case
to the attention of the office of the Provincial Fiscal only on April 22, 1968
does not, in the view of the Court, weaken the case against accused because it
is understandable that she could not expect much help or favorable action if
she lodged her complaint with the police force of Abuyog considering that
accused was himself a policeman.
“It may be even noticed that, according to Amelita and
Conchita Austero, Mayor Traya himself advised them to pursue the case outside
of Abuyog because the offense involved was a serious one. Of course, the mayor himself found it rather
difficult if the case were initiated in Abuyog because accused was a policeman
whom he himself had appointed, aside from the fact that he was a relative of
his wife.”