PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LORETO MALBAGO, ACCUSED-APPELLANT.

Loreto Malbago appealed to this Court
from the judgment of the Court of First Instance at Ormoc
City, which convicted him of the felony of rape and sentenced him to “life
imprisonment; to indemnify the victim Florita Turtogo in the sum of P12,000.00; and to recognize the
offspring, if and when the complainant shall give birth to a child within the
ordinary period of pregnancy from the date of the sexual intercourse on
February 20, 1973.”^[1]

At the time that the crime was supposedly committed, Florita was 14 years of age, residing at barrio Rizal, Kananga;
Leyte, and a high school
student at the Saint Peters college
at Ormoc City.  Loreto was then the driver of a “St.
Anthony” passenger bus, whom Florita had known
for quite some time, having first become acquainted with him when he was
employed as the driver of a neighbor’s jeep;^[2]
he was described by Florita in her testimony as a
close friend of hers;^[3]
and she was wont to address him as “Noy Rito,” “noy” being
a contraction of “manoy,” a term of respect
for an older man.^[4]

Florita’s narration of her rape is set
out in no little detail in the decision of the Trial Court.

She says that on February
18, 1973, she went to Kananga
to do some marketing and also to get a bag she had left at the municipal
building where a “coronation ceremony,” which she had attended, had
been held the night before.  She met
“Noy Rito,”
Loreto Malbago, at the bus station, and rode in the
“St. Anthony” bus driven by him on the trip back to her home at
Barrio Rizal. 
On the way, she told Loreto of a scolding she had received from her
sister after they had both gone home from the coronation ceremony.  Loreto then “invited her to go with him
to Palompon, Leyte
to stay with a certain lady teacher there, and she acceded ** .”^[5]

Two days later, on February
20, 1973, Florita again met Loreto at the
bus station.  She told him she meant to
go to Tacloban City, “but he told her that he
would conduct her to Palompon, Leyte
** ; (the bus developed engine trouble however) in the bus station of Kananga ** (so) Loreto Malbago
said they would just go back to Ormoc; (they did) and
the accused brought her to the house of Mr. Teodoro Bonsilao in Mabini St., Ormoc City at about six or seven o’clock in the evening of
that day **.”^[6]

Florita was acquainted with Teodoro Bonsilao, who was called
“Lolo,” and whom she knew to be a former driver also of a “St.
Anthony” bus.  At Teodoro’s house, she met his wife, Paz, for the first
time.  She “noticed that there were
many teen-agers and children, mostly boys, who were there as well as the couple
** (and) that the house of the Bonsilaos is not big
** and has only two rooms **. ” She was told by Paz that “some of
those children ** are her children and some were her nephews and nieces
**.”

Florita washed her feet and then dried
them with a towel in the bedroom to which she was brought by Teodoro Bonsilao’s 12-year old
daughter, Inday. 
Florita sat down on the bed.  Inday went
out.  Loreto came in.  He sat beside her and without saying anything
held her right hand.  Florita,
alarmed, went out of the room and conversed with Inday
Bonsilao in the sala.  After a while, feeling sleepy, she asked Inday to accompany her back to the bedroom where they
continued to talk.  A little later, Inday’s mother, Paz, came in.  Paz asked Florita
why she was with Loreto.^[7]
Florita told her “that she was going with the accused
to Palompon ** because ** he would give her a job
there, and ** another reason was because she was scolded by her elder sister at
home.” Paz said, “So that’s it,” or words to that effect and
left the room.

Still later, Paz Bonsilao came back to
the room.  lnday
went out, and Lolo Bonsilao and Loreto Malbago entered the room. 
The latter switched on the light. 
They talked.  Lolo asked Florita why she was with Loreto, and she gave him the same
answer she had given Paz.^[8]
After a few moments of silence, according to the Trial Court (still summarizing
Florita’s testimony) –

” ** (Loreto suddenly) held together
her two thighs with his left elbow as well as ** the wrist of her right hand,
while Lolo Bonsilao held her left hand and Mrs. Paz Bonsilao, who was staying near her head, pressed her thumb
and middle finger on ** (her) cheeks ** in order that her mouth could be opened
and something which looked like coffee placed in a glass was poured into her
mouth, thus, she was able to drink the liquid which tasted sweet and bitter, **
after which she became dizzy and did not know anymore what happened to her as
she regained consciousness only at three o’clock dawn of the following morning
and found out that she was still in the bedroom with Loreto Malbago
lying beside her and was already awake; that when she woke up **, she cried
because she already knew what happened to her as her vagina was already painful
and she found out that she had nothing on any more except her sando underwear; that in the previous evening before
the incident, she saw Loreto Malbago wearing an
undershirt and long pants, but when she woke up ** she saw that the accused was
not any more in his long pants, but only a brief ‘Walker’ and a sleeveless
undershirt; that she went out of the bedroom ** and went to the sala, after which Loreto Malbago
also went out and proceeded to the (other) bedroom where Lolo Bonsilao was and woke (him) up ** because according to the
accused, they were already plying their bus, while she went back inside the
bedroom; that when she woke up that early morning, the first thing she noticed
when she sat near the feet of Loreto Malbago was her
panty with blood, which she put on and went out of the room; that during the
whole day of (that) Wednesday, she stayed in the house of Lolo Bonsilao with Mrs. Paz Bonsilao
and went to ** (her) boarding house (at Ormoc City)
at 8:00 in the evening, where her elder sister was also boarding, but when she
arrived there, her sister was in the church and came back only at 8:30 when she
was already asleep; that when she felt the pain on her vagina, she became
worried and as she was schooling during that time, she did not any more go to
school after the incident because she was ashamed, so she went home (to Barrio Rizal) **; and that when she examined the area on her body
which was hurting, she found out in her anus that there was something like
water, but was only sticky, which caused it to be wet.”^[9]

Florita stayed in the Bonsilaos‘ house the whole day of February 21, 1973, as above stated.  Loreto returned from his trip to Tacloban City
at about 3 or 4 o’clock in the
afternoon, while she was still asleep. 
When she woke up, Loreto was having “a drinking spree at the
kitchen, so she did not attempt to go near him.” Loreto approached her
when she was in the sala, however, and
“they had a brief conversation.”^[10]
She went home only at 8:30 in the
evening “because she was ashamed to go out during the day.” Besides,
“Mrs. Paz Bonsilao prevented her from going out
** by saying, ‘Do not go out because you might be seen,’ to which she retorted
saying, ‘Why?  I have not done anything
wrong,’ and Mrs. ** Bonsilao answered back,’ Never
mind.”^[11]

On arriving at her boarding house, she found nobody there;
apparently, everybody had gone to church. 
So she went to sleep.  In the
morning (February 22) at about 7 A.M.
she went to Can-adieng, Ormoc City
to “collect money.” Then she went home to Barrio Rizal.^[12]
She got there at about noon; nobody
was home.  When her mother returned, she
inquired if she “was able to bring the money to which she answered in the
affirmative and that was all their conversation ** for that day.”^[13]

Three (3) days later, Florita sent a
note to Loreto Malbago, “telling him to give her
bag to a certain Mana Aurora.” She sent the note
through a friend, Estrellita Rebuyas,
who picked it up from her home at about 3 P.M.
on February 25, a Sunday.^[14]

It seems that at about this time, her parents were already
suspecting that something had happened to her. 
Her father had received a radiogram from his brother, a policemen in Ormoc, inquiring about her; and on that Sunday, February 25, 1973, she was
intermittently questioned by her father. 
She finally told her mother about the incident at the Bonsilaos‘ house. 
The latter in turn told her father about it.  When she was asked about it by her father,
she refused to say anything.  This
enraged him and he struck her with his belt. 
She covered her face and evaded the blow, but in so doing, she hit
herself against the wall.^[15]
She then told her, father everything.

Florita was brought the following day, February 26, 1973, to the Ormoc General Hospital
where she was examined by the physician on duty, Dr. Pelagio
Kierulf.  He
testified that his examination disclosed an abrasion on Florita’s
face caused by her having been hit by her father; that she was negative for
spermatozoa; and that “the hymen was not damaged,” there “was no
penetration because not even a finger could ** (enter) the vagina of ** Florita Turtogo.”^[16]
In his medical certificate dated February
26, 1973, he set out his findings as follows:^[17]

“1.     Old abrasion at
the middle of the right face;

2.       Presence of slightly
fresh laceration of the hymen at 6:00 o’clock
considering the orifice of the vagina as the face of

3.       the clock.

4.       Smear – negative of
spermatozoa.

* * * “

In the course of her testimony, Florita
expressed resentment against Teodoro Bonsilao for exposing “what happened to her” (and
not for having taken part in the lascivious assault against her).  According to her, “this incident could
not have been known if not for Teodoro Bonsilao, alias Lolo, who like a charlatan, during his
trips to Tacloban City, was telling his passengers
about what happened to her and incidentally, one of her neighbors who took that
trip heard it and told them about it; (however) she is not so angry with Teodoro Bonsilao and ** will
think over first if she will file a case against him.”^[18]

In stark contrast to the extensive summary undertaken by the
Trial Court of the testimony of Florita Turtogo, there is not even a passing reference in its
decision to the testimony of the accused?appellant, and only a few words
respecting the evidence given by Teodoro Bonsilao, which it brushes aside not only “because he
is a driver and as such has also a feeling of camaraderie on the accused, but
also because he is a conspirator in the commission of rape * * .”^[19]
The summary and analysis of the testimony of the accused-appellant and his
witness, Lolo Bonsilao, are instead set out in the
Trial Court’s Order of August 31, 1973, denying the appellant’s motion for new
trial.^[20]

On the witness stand, Loreto affirmed that he had known Florita Turtogo and her family
for quite some time.  He declared that he
met Florita Turtogo at the
bus station in the morning of February 20, 1973, and she rode in the bus he was
driving to Kananga. 
She told him she was bound for Tacloban.  He advised her to go to her elder sister, but
she refused, and said she would go with him wherever he went.  She asked where he was residing.  He told her he was staying in the house of
Lolo Bonsilao. 
They went to that house.  The Bonsilao spouses were not in; they had gone to the
movies.  What Loreto did was to leave Florita in the house, asking Lolo’s Bonsilao
daughter to entertain her, while he went back to work.  That night, Florita
slept in the room with the wife of Lolo Bonsilao
while Loreto himself slept in the sala with Lolo’s
children.^[21]

Teodoro (Lolo) Bonsilao
testified that in the evening of February 20, 1973, he and his wife, Paz Inot, had indeed gone to the theater.  Upon their return to their home at around
10:30 o’clock, they came upon Loreto and Florita, who
were in the sala, dancing.  Lolo also asked Loreto, “What is this
all about?” Loreto said that they would just sleep there since it was
already curfew.  Lola thereupon asked Florita who her parents were, and when Florita
told him, he said that her father was his friend.  He asked Florita
“if nothing worse will occur and ** (she) replied there is nothing.”
Mrs. Bonsilao was insisting that Florita
should go home, but Lolo told Florita “that
since it was already curfew hour he will permit her to sleep in his house
provided the following morning she would go home.” Florita
Turtogo slept in the room with Lolo Bonsilao, the latter’s wife, and their small daughter.^[22]

Bonsilao says he woke up at around 3
o’clock the following morning to find that Loreto had left for work even
earlier.  He himself then reported for
work, and when he returned to his home at about 3 o’clock in the afternoon, he
was told by his wife that Florita had departed after
breakfast that morning.^[23]

As already stated, the Trial Court convicted Loreto.^[24]
In its decision it declared that –^[25]

” * * from the evidence presented by
both parties, the accused had carnal knowledge of Florita
Turtogo when the latter was deprived of reason or
otherwise unconscious, with the use of drugs contained in a glass of water
applied by the accused in cooperation and conspiracy with Teodoro
Bonsilao and Paz Bonsilao,
taking into account the findings and report of Dr. Pelagio
Kierulf * * .

While the doctor found no spermatozoa in the vagina of the
complainant, this Court sustains the view that the woman was in fact raped,
considering the laceration in the hymen and that there was penetration of the
male genital organ on the complainant’s vagina * * .

Whatever be the conclusion of the physician on the virginity of the
woman as of the present will not alter the findings of this court that there
was rape committed by the accused on the complaining witness, not only because
the testimony of the complaining witness is in the ordinary course of human
events and is found by this Court to be candid, sincere and credible as against
the testimony of the accused who was hesitating and therefore, his testimony is
found by this Court to be incredible.

The Court accordingly disposed of the case as follows:^[26]

“WHEREFORE, this Court finds the accused LORETO MALBAGO guilty
beyond reasonable doubt of the crime of Rape and this Court hereby sentences
the accused to a life imprisonment; to indemnify the victim Florita
Turtogo in the sum of P12,000.00; and to recognize
the offspring, if and when the complainant shall give birth to a child within
the ordinary period of pregnancy from the date of the sexual intercourse on
February 20, 1973.

The accused is credited with his preventive imprisonment as
provided for by law.

Let a copy of this decision be furnished the Honorable Secretary of
Justice as well as the City Fiscal for further prosecution of Teodoro Bonsilao alias Lolo Bonsilao and Paz Bonsilao in the
commission of rape.”

Some twelve (12) days after the promulgation of judgment, Loreto Malbago’s attorney, Heliodoro T. Fiel, filed a motion for new trial on the ground of newly
discovered evidence.  The evidence
consisted of a letter that Florita had supposedly
asked one Cesar Maglasang to deliver to her
sweetheart, Loreto, reading:  “Dear
Noy Nito,:  Noy, bring my bag
tomorrow and leave it at the corner, and tell that it should be brought
by the honda in the afternoon, tell Man Aurea.  Love, lnday.” Maglasang’s
affidavit was appended to the motion.

This move proved disastrous. 
For when Cesar Maglasang gave evidence at the
hearing of the motion for new trial, he denied material portions of his
affidavit.  That affidavit, according to
him, was prepared by Loreto’s lawyer, Atty. Fiel, in
the latter’s house.  He disclaimed that
part of the affidavit depicting Florita and Loreto as
lovers, although he admitted the portion referring to his intimate acquaintance
with Florita’s parents.  He also denied the allegation in his
affidavit that Florita had given him a note for
delivery to Loreto, asserting that the note entrusted to him by Florita on February 20, 1973 was not for Loreto, but for Florita’s mother, which he had delivered.  While admitting that he had gone to see
Loreto at the City Jail, he averred that it was for the purpose of paying for
some pigs and not, as his affidavit states, to deliver any note to him.^[27]

Moreover, the letter allegedly entrusted to Cesar Maglasang, marked as Exhibit “1,” was discovered
by the Court, upon examination, to bear “earmarks of a simulation or
falsification with the addition of the word ‘love’ prior to ‘Inday,’ because a comparison of Exhibit ‘X’ with the
handwritten word, ‘love,’ in ball pen and in pencil by the complainant clearly
reveal the difference in the writing of ‘love’ before Inday
in said Exhibit ‘1’ and the word ‘love’ handwritten in open Court by the
complainant in Exhibit ‘X.'”^[28]

The defendant’s motion for new trial was consequently denied by
Order dated August 31, 1973.^[29]
Hence, the present appeal in which Loreto Malbago
pleads for reversal of the verdict of conviction and his acquittal on
reasonable doubt on the basis of two (2) errors attributed by him to the Court a
quo, to wit:

1)    finding
that he had carnal knowledge of Florita “when
the People’s own evidence positively shows the contrary,” and

2)    finding
that Florita “was deprived of reason or was
rendered unconscious with the use of drugs applied by the accused in
cooperation and conspiracy with Teodoro Bonsilao and Paz Bonsilao, when
there are facts and circumstances in the expediente
making the testimony relative thereto ** incredible.”

In substantiation of the first ascribed error, the appellant
invokes the testimony of Dr. Pelagio Kierulf.^[30]
Dr. Kierulf’s testimony is to the effect that –

1.     Florita was still a virgin at the time he examined her with
the use of a “vaginal speculum” six (6) days after the alleged rape;

2.     Florita, on examination, was found negative for
spermatozoa;

3.     her
hymen was intact, not damaged, there being only a very slight laceration
thereof which however he did not believe could have been caused by the
insertion of some object into her vagina; indeed, the physician’s finger could
not be inserted in that organ;

4.     if
was unlikely that that slight laceration was caused by penetration, of “a
hard object, for example a penis,” because, as the physician put it,
“if you are also the man ** you do not have to stop there.”

The appellant argues that assuming that Florita
had been rendered unconscious by some drug and made incapable of presenting any
resistance of any sort, there is no reason why the appellant would not have
actually entered her while she was in that utterly helpless state, if in truth,
what he intended was to have carnal knowledge of her.  The fact is, however, that she was
subsequently found to be still a virgin, with only a very slight laceration of
her hymen.  This demonstrates, the appellant
submits, that her complaint of rape was “nothing but a fabricated
charge,” “more fictional than factual.”

The appellant also contends that Florita’s
narrative of the things that transpired at the Bonsilaos‘
residence taxes credulity, is so unnatural as to be totally undeserving of
credence.

The Court agrees.

It must at the outset be conceded that the evidence given by
appellant Loreto Malbago is feeble, even
contrived.  But the proofs of the
prosecution are of no better character, if not actually inferior.  The familiar principle that the prosecution
must rely for a conviction on the strength of its proofs, and not on the
weakness of those of the defense, is peculiarly applicable to the case at bar.

It is self-contradictory to assert as the Trial Court has in
effect done, that rape was perpetrated on a girl who was found on expert
medical examination six (6) days later, to be a virgin, her hymen intact and
not damaged, there being only a very slight laceration thereof which however,
in the view of the forensic expert who examined her, could not have been caused
by the insertion of some object into her vagina, there having been “no
penetration because not even a finger could ** (enter) the vagina of Florita Turtogo.”^[31]
No explanation of the paradox has been given by the Trial Court or is otherwise
furnished by the record.

Moreover, Florita’s recital of the
manner by which she was sexually assaulted, and the events thereafter
transpiring do not inspire belief, being quite contrary to normal behavior and
experience.

The locus of the crime could not be more
inauspicious:  a small two-bedroom house,
then occupied by a married couple not shown to be otherwise than respectable,
and “many teen-agers and children.”^[32]

Also, the co-conspirators of the rapist could not be a more
unlikely pair:  the owners of the house
in which Florita’s defloration had taken place:  a married woman, who had come to know Florita only at that time, and her husband, Lolo Bonsilao, who knew Florita only
slightly, both described as having spontaneously consented to the commission of
a sexual assault in their own home, in which their own children, and their
nephews and nieces were then sleeping.

Florita’s own conduct subsequent to her
violation could not be more improbable. 
When she recovered consciousness and discovered that she had been
deflowered, she felt no anger, or panic, or other strong emotion; she did not
confront the Bonsilaos or Loreto and denounce them,
or attempt to flee that place of horror or otherwise seek assistance and
vindication; she merely put on her panties though bloodied, and then, when
Loreto went out to work in the early morning, simply returned to the bedroom
and went back to sleep.  What is more,
she stayed in the house the whole day following the night of her rape, again
neither confronting and remonstrating with the Bonsilaos
nor trying to leave and complain to the authorities against them and Loreto Malbago.  She even
took a long siesta and was in fact still slumbering when Loreto returned
to the house at about 4 o’clock in
the afternoon.  On waking up, she had a
brief conversation with her ravisher, Loreto, in the sala.  She left the Bonsilaos‘
home only at about 8 o’clock at night,
went to her boarding house and, when she discovered no one there, again went to
sleep.

Her subsequent acts were also most commonplace:  she went to Can-adieng
to “collect money,” apparently on earlier instructions of her mother,
then went home and gave the money to her mother.  No effort was made to report her ravishment
to her parents, to her sisters, or to the police.  In fact, instead of denouncing Loreto Malbago, she wrote a note to him three (3) days later and
had it delivered by a friend, asking him to do her a small favor, to give her
bag to “Mana Aurora.” She obviously had no
intention of making known her alleged defilement to any one had not Lolo Bonsilao, according to her, gossiped to the passengers of
his bus about “what happened to her,” and one of the latter had told
her father about it; and even then, she said she would still have to think
about filing a case against him.

So often has it been said almost to the point of triteness that
evidence to be believed must not only proceed from a credible witness, but must
be credible in itself.  Here we have an
extremely incredible story, of the defloration of a girl who has yet retained
her virginity, and who afterwards, instead of manifesting that great anger that
might be expected of a maiden so grievously wronged, did nothing but the most
pedestrian things, even requesting her supposed defiler to do an errand for
her.

It is not difficult to reconstruct what really happened:  Florita’s parents
were unwilling to accept her declaration that nothing had happened between her
and Loreto, and that she had gone with him to the Bonsilaos
simply out of pique resulting from her elder sister’s scolding, and because of
the prospect of obtaining a job at another place; her parents were clearly of
the impression that the story would not be believed by their relatives and
friends, and would bring disgrace to Florita and her
family; hence, the ideation of a new version of the incident, to protect Florita’s honor, which was the version recounted to the
investigators and eventually the Trial Court. 
The stratagem was helped along by the bungling of Loreto and his counsel
who, instead of standing by the truth, made what the Trial Court perceived to
be a clumsy attempt to embellish an innocuous note of Florita
to Loreto and make it appear as a communication between lovers.  Be this as it may, the Court cannot affirm a
conviction of such a grave crime as rape on the basis of a demonstrably
unnatural and unpersuasive narration of facts by the complaining witness.

WHEREFORE, the judgment of conviction appealed from is
REVERSED and the accused-appellant is ACQUITTED, with costs de oficio.

SO ORDERED.

Cruz, Griño-Aquino, and Medialdea, JJ., concur.

Gancayco, J., on leave.

^[1]
Criminal Case No. 396-0; decision rendered on June 13, 1973 by Hon. Numeriano
G. Estenzo; reproduced at pp. 16-33 of the rollo

^[2]
Rollo, pp. 19-20; 89:  Brief for Accused-Appellant, Decision thereto
appended, pp. 4 – 5

^[3]
Rollo, p. 28; Brief for Accused-Appellant,
Decision thereto appended, pp. 13-14. 
Her older sister, Fe, deposed that Loreto Malbago
was a frequent caller at their home (rollo, p.
17)

^[4]
Id., p. 21

^[5]
Id., pp. 20, 27

^[6]
Id., pp. 20-21

^[7]
Id., p. 21; p. 89:  Brief for Accused-Appellant, Decision
appended, p. 14

^[8]
Id., pp. 21-22

^[9]
Id., pp. 22-23

^[10]
Id., p. 27

^[11]
Id., p. 26

^[12]
Id., p. 27

^[13]
Id., p. 28

^[14]
Id., pp. 27-28

^[15]
Id., p. 28

^[16]
Id., pp. 16-17

^[17]
Id., pp. 30-31

^[18]
Id., pp. 29-30

^[19]
Id., pp. 32-33

^[20]
Id., pp. 34, 40-42

^[21]
Id., pp. 40-41

^[22]
Id., pp. 41-42

^[23]
Id., p. 42

^[24]
SEE footnote 1 at page 1, supra

^[25]
Id., pp. 30-31

^[26]
Id., p. 33

^[27]
Id., pp. 39-40

^[28]
Id., p. 43

^[29]
Id., pp. 34-45; SEE
footnote 20

^[30]
TSN, May 11, 1973, pp. 3-9

^[31]
SEE preceding footnote

^[32]
SEE footnote 7 and related text, at p. 2, supra