PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NOVER BELARMA Y LUCHAVEZ, ACCUSED-APPELLANT.
INGLES, G. T., J.:
Factual and Procedural Antecedents
The accused-appellant was charged under two separate informations, the accusatory portions of which are hereunder quoted as follows:
Crim. Case No. R-ORM-07-00100-HC
That on or about 21st day of May 2007 at around 8:30 o’clock in the evening at Brgy. Bagong Buhay, Ormoc, and within the jurisdiction of this Honorable Court, the above-named accused, NOVER BELARMA y Luchavez by means of force, threat and intimidation, did then and there willfully, unlawfully, and feloniously have carnal knowledge of the victim AAA[2], a minor, 6 years of age, by inserting his penis into the victim’s vagina which sustained several lacerations even if the hymen remains intact, Medical Certificate hereto attached, making the push and pull motion until he consummated his lustful desire without her consent, against her will, and prejudicial to her development and well-being as a child.
In violation of Article 266-A(d) of RPC as amended by RA 8353 in relation to RA 7610.
Crim. Case No. R-ORM-07-00101-HC
That on or about 21st day of May 2007 at around 8:30 o’clock in the evening at Brgy. Bagong Buhay, Ormoc, and within the jurisdiction of this Honorable Court, the above-named accused, NOVER BELARMA y Luchavez by means of force, threat and intimidation, did then and there willfully, unlawfully, and feloniously sexually assaulted the victim AAA, a minor, 6 years of age, by inserting his penis into the victim’s mouth and consummated his lustful desire without her consent, against her will, and prejudicial to her development and well-being as a child.
In violation of Article 266-A, par. 2 of RPC as amended by 8353 in relation of RA 7610.
When arraigned on September 3, 2007, accused-appellant pleaded not guilty in both cases. The pre-trial conference was then terminated on March 3, 2008. The court a quo then conducted joint trial on the merits.
Version of the Prosecution
AAA and her family lived in a construction site in Brgy. Bagong Buhay, Ormoc City where her father works as a construction worker. Accused-appellant, whom AAA called “Kuya Nover”, was her father’s co-worker. AAA was only six (6) years old at the time of the commission of the offense.
On May 21, 2007, at around 8:30 in the evening, while AAA was playing outside and her father was busy preparing dinner, accused-appellant told AAA to go with him to the outhouse near the construction site. When they were inside, accused-appellant immediately took off AAA’s shorts and panty and undressed himself. He then inserted his penis into AAA’s mouth. AAA cried and was frightened. Accused-appellant then inserted his penis inside AAA’s vagina. AAA felt pain in her vagina and saw a white fluid coming out from accused-appellant’s penis.
When it was time to eat dinner, AAA’s father called for her. One of his sons told him that AAA is outside. AAA’s father looked for her and saw her crying and holding her vagina. He rushed towards her and asked what had happened. AAA answered: “Kuya Nover fucked me.”
The next day, the incident was reported to the police. The matter was then referred to PO3 Nova Tan who prepared AAA’s affidavit. Dr. Marilyn Pascual conducted the medical examination. She found that AAA’s hymen was not intact because of several lacerations, and the specimen taken from AAA’s vaginal canal tested positive for human sperm.
Version of the Appellant
Accused-appellant Belarma proffered denial as his defense claiming that on May 21, 2007 at around 8:30 o’clock in the evening, he was at home watching TV together with his parents, his wife, his siblings and his co-worker. He knew AAA’s father because he is a co-worker, but accused-appellant did not know that it was AAA’s father who charged him for rape. When he went to Bliss to get a scaffolding on May 21, 2007, he was arrested by police officers. To his knowledge, the reason why AAA’s father charged him for allegedly raping the latter’s daughter was because AAA’s father and the accused-appellant’s father had some kind of work-related quarrel.
Accused-appellant’s father, Rodolfo Belarma, corroborated the testimony of his son that on the date and time of the incident, accused-appellant was in their house watching television until about 9 o’clock in the evening after which they went to bed. Rodolfo testified that the reason why AAA’s father charged his son, Nover, with rape was because they had a work-related altercation.
Findings of the trial court
On August 16, 2013[3], the trial court promulgated its Judgment[4] dated August 13, 2013 convicting accused-appellant as charged. The trial court ruled that the prosecution was able to establish by clear and convincing evidence that indeed, the accused had carnal knowledge and sexually assaulted the victim who was six (6) years old at the time the crime was committed.
The trial court gave full faith and credit to AAA’s testimony who positively identified the accused-appellant as the perpetrator. Moreover, the victim vividly remembered the details of her harrowing experience and despite her young age, AAA was frank and straightforward in her testimony. The trial court further ruled that although AAA could not remember the year when the incident occurred, this does not discredit her testimony. What is decisive in a rape charge is that the commission of the rape by the accused against the complainant has been sufficiently proven. Inconsistencies and discrepancies as to minor matters which are irrelevant to the elements of the crime cannot be considered grounds for acquittal.
The trial court rejected the accused-apellant’s defense which is alibi and denial and ruled that considering that AAA positively identified the accused in a categorical and consistent manner and without any showing of ill motive on the part of the eyewitness, the positive testimony must prevail over the accused-appellant’s denial.
The dispositive portion of the said Judgment reads:
“WHEREFORE, PREMISES CONSIDERED, the prosecution having proven the guilt of the accused beyond reasonable doubt in both Criminal Case No. R-ORM-07-00100-HC and Criminal Case No. R-ORM-07-00101-HC, judgment is hereby rendered as follows:
1. In Criminal Case No. R- ORM-07-00100-HC, this Court finds the accused, NOVER BELARMA y Luchavez, guilty beyond reasonable doubt of the offense of Statutory Rape by having carnal knowledge of AAA who is below 12 years of age at the time of the commission of the offense as defined and penalized under letter (d) paragraph 1 of Article 266-A of R.A. 8353 with the qualifying circumstance under number 5 of Art. 266-B of Republic Act 8353 that the victim is a child below seven years old as charged in the Information and hereby sentences him to suffer the penalty of Reclusion Perpetua; and to indemnify the victim, “AAA”, the amount of P75,000.00 as civil indemnity, and P75,000.00 as moral damages, and P30,000.00 as examplary damages.
2. In Criminal Case No. R- ORM-07-00101-HC, this Court finds the accused, NOVER BELARMA y Luchavez, guilty beyond reasonable doubt of the offense of Rape by Sexual Assault as defined and penalized under paragraph 2 of Article 266-A of Republic Act 8353 with the qualifying circumstance under number 5 of Art. 266-B of Republic Act 8353 that the victim is under 7 years of age as charged in the Information and hereby sentences him to suffer the indeterminate penalty of six (6) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum and to indemnify the offended party, “AAA”, civil indemnity of P30,000.00, moral damages of P30,000.00 and exemplary damages of P30,000.00.
In the service of his sentence, the accused being a detention prisoner is entitled to be credited with the full time during which he had undergone preventive imprisonment if he voluntarily agree in writing to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise he shall be credited with only 4/5 thereof, in accordance with Article 29 of the Revised Penal Code.
SO ORDERED.”
Accused-appellant timely filed a Notice of Appeal[5] on August 27, 2013, which was given due course by the trial court in its Order dated September 11, 2013[6].
This court received the records of this case on November 5, 2013[7]. On November 25, 2013, a Notice to File Brief[8] was sent to the parties. Appellant filed his brief[9] on February 3, 2014, while the appellee filed brief[10] on July 21, 2014. This case was declared submitted for decision on January 20, 2015[11].
Assignment of Errors
Accused-appellant now seeks the reversal of the trial court’s judgment and makes the following assignment of error:
“The trial court erred in convicting the accused-appellant of the crimes charged despite the fact that the prosecution failed to prove his guilt beyond reasonable doubt.”[12]
Appellant’s Arguments
The accused-appellant contends that the trial court overlooked certain facts of substance pertaining to the credibility of complainant-witness AAA, which, if considered, will affect the result of this case.
The accused-appellant points to allegedly material and substantial inconsistencies in the testimony of private complainant, particularly on private complainant’s imperfect recollection as to what happened right after the rape occurred. This substantial discrepancy in the testimony of the prosecution’s primary witness, appellant argues, should not have been ignored by the trial court as it creates doubt on the credibility of AAA. Moreover, the testimony of AAA cannot be considered as direct and straightforward as most of AAA’s answers were elicited only after the prosecution propounded leading questions thus already suggesting the answer to the witness, AAA.
Finally, the accused-appellant argues that where two conflicting probabilities arise from the evidence, as in this case, the one compatible with the presumption of innocence will be adopted. Judges must free themselves of the natural tendency to be overprotective of every girl or woman decrying her defilement and demanding punishment of the abuser. While courts ought to be cognizant of the anguish and humiliation the rape victim goes through as she demands justice, magistrates should equally bear in mind that their responsibility is to render justice in accordance with law.
Appellee’s Arguments
The appellee on the other hand argues that the prosecution more than sufficiently proved the guilt of appellant beyond reasonable doubt. The alleged inconsistencies and contradictions in AAA’s testimony are too inconsequential to the issue of rape and do not affect her credibility.
What is decisive in a rape charge, the appellee argues, is that the commission of the rape by appellant against complainant has been sufficiently proven. Inconsistencies and discrepancies as to minor matters which are irrelevant to the elements of the crime cannot be considered grounds for acquittal. Thus, the trial court was correct in giving full faith and credit to the testimony of AAA.
Ruling of this Court
After a careful and independent review of the records of this case, this Court finds the accused-appellant’s appeal to be devoid of merit.
Accused-appellant Belarma was charged with Rape under Article 266-A paragraph 1 (d), and sexual assault under Article 266-A paragraph 2, of the Revised Penal Code[13]. Said provisions read:
Article 266-A. Rape, When and How Committed. – Rape is committed:
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or is otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority;
d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.
2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person[14].
On the charge of Statutory Rape
The elements of statutory rape are (1) the offender had carnal knowledge of a woman; (2) such woman is under twelve (12) years of age or is demented[15]. The prosecution duly established that AAA was below twelve (12) years old by presenting in court her birth certificate showing that AAA was born on August 25, 2000, which means that AAA was only six (6) years and nine (9) months old when the rape happened on May 21, 2007[16]. The element of carnal knowledge was established through the testimony of AAA herself, to wit:
Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A:
Sexual intercourse with a woman below twelve (12) years o age, whether consented to or not, is punishable as rape. The absence of free consent is conclusively presumed as the law supposes that a woman below this age does not possess discernment and is incapable of giving intelligent consent to the sexual act.[18]
On the charge of sexual assault
The elements of rape through sexual assault are: (1) the offender commits an act of sexual assault (2) the act of sexual assault is committed by inserting his penis into another person’s mouth or anal orifice, or by inserting any instrument or object into the genital or anal orifice of another person[19] all of which have been proven by the prosecution in this case. AAA’s testimony is clear and straightforward:
Q: A: Q: A: Q: A:
In this appeal, accused-appellant Belarma tries to discredit AAA by arguing that her testimony is riddled with inconsistencies and unworthy of belief. Appellant argues that when AAA was asked what her father did after learning of the incident, AAA said that her father boxed the appellant, which runs counter to the testimony of her father who claimed that after he was informed by AAA of what happened, he was unable to confront the appellant because when he went to the latter’s house, said appellant was not there[21].
AAA, as found by the trial court, was unequivocal in her testimony that she was raped by accused-appellant. While her father may have contradicted AAA’s testimony by stating that he was unable to confront the accused-appellant immediately after the incident, it is AAA’s clear and credible testimony that should determine accused-appellant’s guilt. While on the witness stand, AAA detailed how accused-appellant violated her; she minced no words about what accused-appellant did to her on May 21, 2007.
The Supreme Court has consistently ruled that since human memory is fickle and prone to the stresses of emotions, accuracy in a testimonial account has never been used as a standard in testing the credibility of a witness.[22] The inconsistencies appellant Belarma is referring to are inconsequential and in no way diminish AAA’s credibility. Thus, such trivial and insignificant discrepancies, which in this case were immediately clarified upon further questioning, will warrant neither the rejection of her testimony nor the reversal of the judgment.[23] So long as the testimony is consistent on material points, slightly conflicting statements will not undermine the witnesses’ credibility nor the veracity of her testimony.
The appellant’s contention that the testimony of AAA cannot be considered as direct and straightforward as most of AAA’s answers were elicited only after the prosecution propounded leading questions thus already suggesting the answer to the witness, is untenable.
When AAA took the witness stand on December 2010, she was only ten (10) years old. A child of tender years may be asked leading questions under Section 10(c), Rule 132 of the Rules of Court. Sec. 20 of the 2000 Rule on Examination of a Child Witness also provides, “The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice.”
The afore-cited rule was formulated to allow children to give reliable and complete evidence, minimize trauma to children, encourage them to testify in legal proceedings, and facilitate the ascertainment of truth.[24] This Court finds the leading questions allowed in this case merely aided AAA in testifying with more detail and did not suggest to her the answers integral to the actual commission of rape. What is more, AAA’s charge of rape finds support in the medical report on her physical injuries. The medico-legal witness, Dr. Marilyn Pascual, testified that there were lacerations on AAA’s hymen and presence of spermatozoa in AAA’s vaginal canal, all of which are consistent with rape.[25]
Accused-appellant’s denial of the crime cannot prevail over the positive testimony of the victim. As held in People v. Suarez,a rape victim’s straightforward and candid account,corroborated by the medical findings of the examining physician, is sufficient to convict the accused.[26] This conclusion becomes all the more firm where, as in this case, the child-victim takes the witness stand. Previous decisions involving rape cases have shown us the high improbability that a girl of tender years would impute to any man a crime so serious as rape if what she claims is not true.[27] Also, corroboration of a child’s testimony is not even required under Sec. 22 of the Rule on Examination of a Child Witness, thus: Corroboration shall not be required of a testimony of a child. [The child’s] testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases.
Accused-appellant’s suggestion that the charge against him could have been fabricated, an offshoot of an altercation argument he had with AAA’s father, has nothing to support itself. There is likewise nothing in the records indicating that the prosecution witnesses testified against accused-appellant out of malice.
A rape victim’s testimony as to who abused her is credible where she has absolutely no motive to incriminate and testify against the accused.[28] Categorical and positive identification of an accused, without any showing of ill motive on the part of the eyewitnesses testifying on the matter, prevails over denial and alibi, which are negative and self-serving.[29]
We thus affirm the trial court’s appreciation of the testimonial evidence adduced. It is well settled that the evaluation of the credibility of witnesses and their testimonies is a matter best undertaken by the trial court because of its unique opportunity to observe the witnesses firsthand and to note their demeanor, conduct, and attitude under grilling examination.[30] These are important in determining the truthfulness of witnesses and in unearthing the truth, especially in the face of conflicting testimonies. For, indeed, the emphasis, gesture, and inflection of the voice are potent aids in ascertaining the witness’ credibility, and the trial court has the opportunity and can take advantage of these aids. These cannot be incorporated in the record so that all that the appellate court can see are the cold words of the witness contained in transcript of testimonies with the risk that some of what the witness actually said may have been lost in the process of transcribing.[31]
WHEREFORE, the appeal is hereby DENIED. The Judgment dated August 13, 2013 of the Regional Trial Court of Ormoc City, Branch 35 in Criminal Case Nos. R-ORM-07-00100-HC and R-ORM-07-00101-HC is hereby AFFIRMED in its entirety.
SO ORDERED.
Lagura-Yap, M.B., and Lopez, J.Y., JJ., concur.
[1] Penned by Hon. Rogelio R. Joboco, Acting Presiding Judge.
[2] The real name of the victim is withheld to protect her identity and privacy pursuant to Section 29 of Republic Act No. 7610, Section 44 of Republic Act No. 9262, and Section 40 of A.M. No. 04-10-11-SC.
[3] Original record, page 188.
[4] Original record, pp. 171-186.
[5] Original record, pp. 189-190.
[6] Original record, pp. 193-194.
[7] Rollo, page 2.
[8] Rollo, page 29.
[9] Rollo, pp. 33-45.
[10] Rollo, pp, 80-96.
[11] Rollo, page 98.
[12] Rollo, page 40.
[13] As amended by Republic Act No. 8353, and all in relation to R.A. 7610.
[14] Emphasis ours.
[15] People vs. Arpon, G.R. No. 183563, December 14, 2011.
[16] See Exhibits “F” and “G”, pp. 9-10, original record.
[17] TSN dated December 15, 2010, pp. 6-8.
[18] People vs. Banzuela, G.R. No. 202060, December 11, 2013.
[19] People vs. Garcia, G.R. No. 206095, November 25, 2013.
[20] TSN, December 15, 2010, pp. 7-8.
[21] See page 7 of Appellant’s Brief.
[22] People v. Cabungan, G.R. No. 189355, January 23, 2013.
[23] People v. Cabungan, G.R. No. 189355, January 23, 2013.
[24] 2000 Rule on Examination of a Child Witness, Sec. 2.
[25] TSN, August 19, 2008.
[26] G.R. Nos. 153573-76, April 15, 2005, 456 SCRA 333, 350.
[27] People v. Arsayo, G.R. No. 166546, September 26, 2006, 503 SCRA 275, 287.
[28] People v. Dela Cruz, G.R. No. 135022, July 11, 2002, 384 SCRA 375, 389.
[29] People vs. Suarez, G.R. Nos. 153573-76, April 15, 2005, 456 SCRA 333, 349.
[30] People vs. Zafra, G.R. No. 197363, June 26, 2013.
[31] People vs. Zafra, G.R. No. 197363, June 26, 2013.