THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EWALDO CABATLAO, DEFENDANT-APPELLANT.

This is an automatic review of the decision in Criminal Case No.
138-006 for Robbery with Rape of the Court of First Instance of Davao Oriental, Branch XII convicting the accused and
imposing upon him the penalty of death.

The information filed
with the court a quo charging the accused Ewaldo
Cabatlao together with John Doe with the crime of Robbery with Rape reads:

“The undersigned accuses EWALDO CABATLAO of the crime of ROBBERY WITH RAPE, under Art. 294
of the Revised Penal Code, committed as follows:

“That on or about September 20, 1970, in the Municipality of Baganga, Province of Davao
Oriental, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together with John Doe, who
is still at large, and helping one another, with the use of vio­lence against
and intimidation of persons, armed with deadly weapons, and with intent of
gain, did then and there wilfully and feloniously
enter the house inhabited by the spouses
Quirino Pandan and Lolita Peligreno Pandan and their
children, and once inside take, steal and carry away cash in the sum of TWO
HUNDRED (P200.00) PESOS belonging to the spouses Quirico
and Lolita Pandan, to their damage and prejudice in
the aforesaid sum of P200.00; that on the occasion and/or by reason of the
aforesaid robbery, the above-named accused, Ewaldo Cabatlao, acting in conspiracy with his co-accused, by use
of force and intimidation, being armed with deadly weapons, did then and there wilfully, unlawfully and feloniously have carnal know­ledge
with Lolita Peligreno against her will and consent.

“Contrary to law.

“Mati, Davao Oriental, May 10, 1971.

FOR THE PROVINCIAL FISCAL:

S/T RICARDO M. BERBA

2nd Asst. Prov.’l Fiscal”^[1]

The trial proceeded as against accused Ewaldo
Cabatlao alone for his co-accused, John Doe, remained
at large and his identity was not determined.

The trial court found that the crime was committed at midnight on
September 20, 1970, in sitio Dalican,
barrio Bobonao, Baganga, Davao Oriental at the house of the spouses Quirico Pandan and Lolitan Pandan; that while the
spouses together with their two (2) young children were soundly asleep, they
were awakened by the noise of their chickens under their house; that Lolita Pandan had barely lighted a wick lamp when the impro­vised
door shutter of their main door was forcibly opened and fell down; that two (2)
armed men barged into their house, one armed with a dagger who identified as
the accused Cabatlao and the other armed with a haras or bolo who was not known to the
victims; that Quirico Pandan
was immediately hogtied with both hands behind his back and made to lie down
face downward; that the hogtied Quirico Pandan was then guarded by the other robber while accused Cabatlao hogtied like­wise Lolita Pandan
after thrusting his dagger at her body but only hitting her hand; that Cabatlao forced open a wooden trunk with his dagger and
extracted therefrom the savings of the spouses in the
amount of P200.00; that the accused Cabatlao, with
his dagger, threatened Lolita Pandan with death and
forced her to lie down and had sexual intercourse with said Lolita Pandan, which the lower court characterized as “on
three inconceivable positions upon imposition of the accused”; that after the accused Cabatlao
had satisfied his lust, his companion, the unidentified John Doe, also had
sexual intercourse with Lolita Pandan; that on the
following morning the spouses reported the incident to their landlord, Arnulfo Balbuena, who accompanied
them to the Municipal Police Department to formally lodged their complaint; and
that Lolita Pandan was examined by the Rural Health
Physician who issued a medical cer­tificate (Exh. D).^[2]

The accused, Ewaldo Cabatlao,
interposed as his defense alibi corroborated by the testimonies of four (4)
witnesses.

The defense witnesses testified that on the night of September
20, 1970, the accused Cabatlao was in his house at Dalican, Bobonao, Baganga, Davao Oriental; that the
accused did not leave the house the whole day and night of said date because he
had severe headache, tooth ache and stomach ache; that the defense witnesses were in the house of Ewaldo
Cabatlao engaged in a drinking spree but Ewaldo Cabatlao was not able to
par­ticipate because he was just lying down in pain.^[3]

The lower court’s
findings and conclusions are:

“The offended spouses, Lolita Pandan
and her husband, positively and steadfastly pointed to the accused Ewaldo Cabatlao as one of the
principal perpetrators of the crime.  In
the affidavits taken by the police investigators of the offended spouses on September 22, 1970, only two days
from the date of the incident, it appears that the accused Ewaldo
Cabatlao has been definitely and positively
identified by the complainants.

“In the light of the facts established by the evidence, the
court is of the opinion that the acts complained of have been committed by the
accused Ewaldo Cabatlao and
that he is guilty of the crime of which he is charged.  The court found the defense of alibi put up
by the accused not impressive.  The
alibi, as herein devised by the accused, is unworthy of belief.  Witnesses Gregorio Estra­da and Lucindo Katipunan whose testimony
were presented to constitute the alibi, were con­flicting in their
testimony.  For instance, Gregorio
Estrada testified that there was no partition or separate room in the house of Epifanio Cabatlao; but Lucindo Katipunan tes­tified
that there was a separate room or bed­room.  Gregorio Estrada testified that his daughter
Luz Estrada has been living with the Cabatlaos in Bobonao since her marriage some­time long before September
20, 1970; but Lucindo Katipunan
testified that he arrived in the house of the Cabatlaos’
in Bobonao to look for work only on September 20,
1970.  Gregorio Estrada testified that
they drunk that evening of September 20, 1970 Siu Hoc
Tong, but Lucindo Katipunan
testified that they drank tuba.  Gregorio
Estrada testified that he arrived in Bobonao at 11:00 o’clock morning of September 20, 1970, but Lucindo
Katipunan testified that Gregorio Estrada arrived at 9:00 o’clock in the morning.  Gregorio Estrada testified that Lucindo Katipunan is a resident of
barrio Baculin, Baganga, Davao Oriental, but Lucindo Katipunan declared that he is a resident of barrio Banao, Baganga, Davao Orien­tal.

“These various conflicts in their testimony, in the mind of
the court, betray the untruthfulness of their version.  The only portion of their testimony which
appears dove-tailed is that portion declaring that there was a drinking spree
the whole evening of September 20,
1970 in the house of the ac­cused, and that the accused never went
out of the house because he was ill.  But
even in this regard, their credibility has been impaired in view of the
admission of Lucindo Katipunan
upon cross-examination by the fiscal that he was told by Gregorio Estrada what
the latter testified in court.  Thus the
probability is that they concocted their testimony beforehand.

“Alibi is a very weak
defense because it is easily manufactured.  The Supreme Court has invariably held that
the defense of alibi cannot overcome the weight of positive testi­mony which is
natural, clear and convincing.  This is
more so where no motive has been shown on the part of the prosecution witnesses
that would have prompted them to testify falsely, and where the accused has
been positively iden­tified.  Tested by
these guidelines, the court believes that the version of the prosecution is
entitled to more weight.

“The commission of the crime was attended by the aggravating
circumstances of (1) night­time and, (2) that the offense was committed in the
dwelling of the offended party.  No
mitiga­ting circumstance was present.

“Bearing in mind the provisions of Republic Act No. 4111
amending the provisions of Article 335 of the Revised Penal Code, which raised
the penalty to be imposed with the range from reclusion perpetua to death, when rape is commit­ted
with the use of deadly weapons or when the crime is committed by two or more
persons, the court, in the light of the facts and cir­cumstances of the case is
left without alter­native but to impose the extreme penalty of death upon the
accused not only because it is the mandate of the law but also as a measure of
relief to an outraged society and to provide a deterrent to the future
commission of similar offense.”^[4]

Atty. Marcial Balgos
was appointed by the Court as coun­sel de oficio
of the accused.^[5]

The counsel de oficio assigned the following errors:

“First Assignment of
Error

“THE TRIAL COURT ERRED WHEN IT FOUND THE EVIDENCE OF THE APPELLEE SUFFICIENT TO JUSTIFY A FINDING OF CONVICTION.

“Second Assignment
of Error

“THE TRIAL COURT ERRED WHEN IT FOUND APPEL­LANT’S SILENCE IN
VIEW OF THE EVIDENCE PRESENT­ED AGAINST HIM AS INDICATIVE OF HIS GUILT.

“Third Assignment of
Error

“THE TRIAL COURT ERRED WHEN IT FOUND APPEL­LANT POSITIVELY
IDENTIFIED, HENCE, HIS ALIBI UNTRUE AND, THEREFORE, LIABLE UNDER THE
CIRCUMSTANCE TO BE METED THE EXTREME PENALTY.”^[6]

Anent the alleged rape committed by the accused upon the victim,
Lolita Pandan, the evidence needs a thorough scrutiny
and appraisal to determine its veracity in the light of human nature and
experience.

The testimonies of Lolita Pandan and
her spouse, Quirico Pandan,
are not only erratic but also conflic­ting in their material points.  Both spouses made exaggerated allegations on
how the rape was committed.  Lolita Pandan testified that she was abused three times in
different inconceivable positions.  The
first sexual intercourse was performed upon her lying down.  The second intercourse was executed by
placing both her legs on the shoulder of the accused and the third sexual act
was executed by making the victim stand and bending downward with her buttocks
in front of the accused.

The carnal acts, as depicted by the victim, while not impossible
of being performed can only be achieved by complete submission of the woman and
cooperation of both the man and the woman in the process.  The portra­yal is not only incredible under
the circumstances but also bizarre.

The alleged rape of Lolita Pandan is
not borne out by the medical evidence consisting of the medical cer­tificate
and the testimony of the physician who examined the victim.  Dr. Teopisto M.
Morales, Rural Health Physician, testified that the victim’s body from the
abdomen down showed no traumatic injury. 
The doctor also categorically stated that the private parts of the
victim were thoroughly examined for injury and semen deposits in the
“cervix” and “curvacious region
portion” but he “was not
able to realize some remains of possible semen” or “traumatic
injury” (t.s.n., pp. 232-4 to 232- 5, April 25, 1973).

The alleged rape becomes
more improbable in the light of the following testimony of Quirico
Pandan:

“Q   After
you were tied, you said Cabatlao went to your
wife.  What was your precise position at
this particular instance?

A     I
was lying down face downward.

Q    In
other words, you have no means of seeing anything because your face was down?

A     I
did not look anymore because I pity my wife, sir.

Q    In
other words, you did not notice what transpired after you lied down face
downward?

A     No,
sir.

Q    Specifically
so because you said that before Cabatlao went to your
wife, he first put out the light of the
belon?

A     Yes,
sir.

Q    And,
there was already darkness after?

A     Yes,
sir.

Q    In
other words, what you said in the direct examination you saw your wife abused
was a figment of your fertile imagination?

A
    Yes, sir, that was my calculation.

(t.s.n., pp. 322-323, April
25, 1973)

The victim’s assertion of injuries she allegedly sustained while
being sexually abused (Exhibits “5” and “D”) is not
credible.  Lolita Pandan
admitted that the dagger thrusts were only attempts to intimidate her.  She was superficially wounded only once by
the first thrust which she tried to parry (t.s.n.,
pp. 64-65, p. 143, February 22, 1973). 
Dr. Morales declared that the four (4) superficial wounds of the victim
had dried up (t.s.n., pp. 256, 258, 259, April 25, 1973).  It is inconceivable that the said wounds
could have been inflicted during the commission of the crime barely sixteen
(16) hours before the examination by Dr.
Morales.  A wound though slight, will not
dry up in sixteen hours.  The wounds
found by Dr. Morales may have been sustained by the victim somewhere else and
not the result of the commission of the alleged rape.

The following rulings of the Supreme Court are applicable to this
case:

“If there was any resistance, it was al­leged in general terms
which likewise cannot suffice to sustain a conviction.  Where the offense charged is rape through
force, the element of voluntariness must be
lacking.  If there is an indication of
willingness, even if half-hearted, the complaint must be dismissed.  Even the documentary evidence of the
prosecution does not prove beyond reasonable doubt that the crime charged was
committed.  Living Case Report No.
MI-70-179 (Exhibit “A”) states that ‘no extra genital physical injury
is noted on the body of the subject at the time of examination’.  Dr. Ernesto G. Brion
affirmed in his testimony that the absence of bruises or scratches on any part
of the body of the subject is an indication that physical violence was not used
on her.” (People vs. Ching Suy
Siong, L-6174, February 28, 1955; People vs. Joven, L-36022, May 22, 1975, 64 SCRA
126; People vs. Lacuna, 87 SCRA 364, 374-375).

“The medical certificate shows that Yolanda sustained only hematoma or contusion on the left leg.  Said injury could have been caused by the leg
bumping against a hard ob­ject.  No other
injury on the body of Yolan­da Perez
was noted in the medical certificate issued by Dr. Leonardo P. Tobias,
Municipal Health Officer of Paombong Bulacan, and Dr. Bienvenido O. Muñoz, Medico-Legal Officer of the NBI.  If the accused were really intent on having sexual intercourse with
Yolanda by force, he could have easily succeeded in doing so.  A man who is bent on raping a woman will not just hurt her thighs.  He will most likely hold her private parts
and breasts, leaving physical injuries in the process.  In the instant case, the medical certificates
reveal that the hymen of Yolanda is intact and no laceration or injury on the
private parts were noticed.” Lopez vs. People, G.R.
No. L-47469, December 29, 1978, 87 SCRA 462, 471.

The alleged rape has not been sufficiently esta­blished.

The next issue to be resolved is what crime was really committed
by the accused Ewaldo Cabatlao.

The finding of the trial court that robbery with violence against
or intimidation of persons as provided for in Article 294 paragraph 5 of the
Revised Penal Code was committed is supported by the evidence.

The counsel de oficio
assailed the finding of the court a quo that robbery was committed on the ground that neither the trunk nor the padlock that
was allegedly destroyed was exhibited in court; that the alleged robbery was
not clearly established by the evidence for the reason that Barrio Captain Sayman testified that neither of the spouses mentioned such
fact of robbery when he and Patrolman Paquidongan
investigated the said incident in their house; that said robbery of P200.00 was
merely a suggestion of said Patrolman Paquidongan;
that the failure of the accused to testify should not be taken against the
accused as inference of his guilt; and that the said accused was not positively
identified as one of the perpetrators of the crime so that his defense of alibi
should have been given credence.

The defense of alibi was correctly not sustained considering the
positive identification of the accused. 
There is no showing of any motive of the prosecution witnesses to
testify falsely against said accused.

The material contradictions in the testimonies of the defense
witnesses on the alibi of the accused Ewaldo Cabatlao noted by the trial court may not be ignored.  There is no reason to disturb such
findings.  It does not appear that the
trial court overlooked facts of substance and value that if considered, might
affect the result of the case.^[7]

The trial court appreciated two aggravating circum­stances of
nighttime and dwelling.  The said
aggravating circumstances cannot be considered. 
Nocturnity was not alleged in the
information.  Moreover, there is no
evidence adduced that nighttime was specially sought by the offenders, or taken advantage of by them to faci­litate the
commission of the crime or to insure its consummation with a minimum of
resistance from the in­mates of the house. 
(People vs. Galapia, 84 SCRA
526, 531-532) Likewise the finding of dwelling as aggra­vating circumstance in
the crime of robbery committed in the house of the Pandans
is untenable.  It is an inherent element
of robbery with force upon things com­mitted inside the dwelling of the victim.  Entrance to said house is inevitable; without
such entrance there could be no robbery. 
(People vs. Jaramilla, 55 SCRA
563, 572)

The accused Ewaldo Cabatlao
is hereby found guilty of the crime of Robbery With Violence against or Inti­midation
of Persons as provided for in Article 294, paragraph 5, of the Revised Penal
Code.

The penalty imposable upon the accused is what this Court imposed
in the case of People vs. Liera^[8],
as follows:

“The penalty for robbery under Article 294, paragraph No. 5,
is prision correccional
in its maximum period to prision mayor
in its medium period.  The penalty lower
by one degree is arresto mayor in its maximum period to
prison correccional
in its medium period.  The indeterminate
penalty imposed on the accused should therefore be a minimum of FOUR (4) YEARS
and TWO (2) MONTHS only.”

WHEREFORE, the decision under review is hereby modified in
that the accused Ewaldo Cabatlao is found guilty
beyond reasonable doubt of the crime of Robbery with Violence against or
Intimidation of Persons as provided for in Article 294 par. 5 of the Revised
Penal Code, and is hereby
sentenced to an indeterminate penalty ranging from Four (4) years, and Two (2)
months of prision correccional,
to Ten (10) Years of prision mayor, to indemnify the offended parties in the sum of Two Hundred Pesos (P200.00) without subsidiary imprisonment in case of
insolvency, and to pay the costs.

SO ORDERED.

Fernando, C.J., Barredo,
Concepcion, Jr., Guerrero, Abad
Santos, De Castro, and Melencio-Herrera, JJ., concur.

Teehankee, J., votes for the affirmance of
death penalty in a separate opinion.

Makasiar, J., concurs in the statement of facts in the dissent of Justice Aquino and votes for the imposition of the death penalty.

Aquino, J., see
attached dissent.

^[1] Rollo, pp. 7-8.

^[2] Rollo, pp. 10-15

^[3] Rollo, pp. 15-18.

^[4] Rollo, pp. 19-20.

^[5] Rollo, pp. 46-52.

^[6] Rollo, p. 53, Appellant’s brief, p. 1.

^[7] People vs. Garcia, 89 SCRA 440, 450-451, citing numerous cases.

^[8] 82 SCRA 163,
171-172.

Normal
150
Clean

6 pt
6 pt
0
3

MicrosoftInternetExplorer4

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-parent:””;
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:10.0pt;
font-family:”Times New Roman”;}

Normal
150
Clean

6 pt
6 pt
0
3

MicrosoftInternetExplorer4

/* Style Definitions */
table.MsoNormalTable
{mso-style-name:”Table Normal”;
mso-tstyle-rowband-size:0;
mso-tstyle-colband-size:0;
mso-style-noshow:yes;
mso-style-parent:””;
mso-padding-alt:0in 5.4pt 0in 5.4pt;
mso-para-margin:0in;
mso-para-margin-bottom:.0001pt;
mso-pagination:widow-orphan;
font-size:10.0pt;
font-family:”Times New Roman”;}