THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. VICTOR OLIVAR Y FACUNDO, DEFENDANT-APPELLANT.

We are asked to determine whether or not a 13-year old provincial
lass was deflowered and made to submit to the bestial desire of a lecherous man
who vehemently denies the accusation against him. Complainant, however, assidiously seeks his conviction.
Accused-appellant Victor F. Oliver is now in jail awaiting the outcome of the
instant appeal from a judgment of conviction rendered by the Regional Trial
Court of the Fourth Judicial Region (Branch XXV, Biñan, Laguna) in Criminal
Case No. 3926-B finding him guilty beyond reasonable doubt of the crime of rape
against the person of Rowena de los Santos.

On July 8, 1985,
Rufina de los Santos, mother of the victim, filed a criminal complaint for rape
against accused-appellant before the Municipal Court of Sta. Rosa, Laguna. Eventually, the corresponding information was filed, charging:

“That on or about May 29, 1985, in the Municipality of Sta.
Rosa, Province of Laguna, Republic of the Philippines and within the
jurisdiction of this Honorable Court,
the accused Victor Olivar y Facundo, with intent to have carnal knowledge, by
the use of force, threats and intimidation, did then and there wilfully,
unlawfully and feloniously have sexual intercourse with Rowena Delos Santos y
Almira, a minor over twelve (12) years of age, against her will and consent, to
the latter’s damage and prejudice.

CONTRARY TO LAW.” (p.
2, Original Record; p. 1, Decision; p. 12, Rollo.).

Upon arraignment on
May 12, 1986, Victor F. Olivar entered a plea of “NOT
GUILTY”, and after trial on the merits, the lower court rendered its
Decision, the decretal portion of
which reads:

“WHEREFORE, judgment is hereby rendered finding accused Victor
Facundo Olivar guilty beyond reasonable doubt as principal, of the crime of
RAPE, defined and penalized under Article 335 of the Revised Penal Code with
aggravating circumstances of use of deadly weapon and abuse superior strength,
not offset by any mitigating circumstance and hereby sentences him to suffer
the penalty of reclusion perpetua; to indemnify the offended party the amount of FORTY THOUSAND (P40,000.00) PESOS; and to
pay the costs.

Considering that this is a conviction for a capital offense which,
pursuant to Section 3 of Rule 114, is not bailable, as a matter of right, where
the evidence of guilt is strong, the bailbond posted by the accused is
cancelled and the accused is hereby ordered
committed to the Municipal Jail, Biñan, Laguna.

SO ORDERED.” (p. 10, Decision; p. 21, Rollo.)

The following antecedent facts find support in the record:

On May 29, 1985, at about 11:00 o’clock in the morning, Rowena de
los Santos, after asking permission from her mother to watch television, went
to the house of accused-appellant which is just adjacent to their house. There were also other houses surrounding
their houses. At the time, the only
persons in the house were the victim and accused-appellant. While they were watching television,
accused-appellant suddenly held both hands of complainant with his left hand
and forcibly pulled her to the upper floor of his house, while her mouth was
covered by accused-appellant’s right hand. Upon reaching the upper floor, accused-appellant released his right hand
from the mouth of the victim and got hold of a pair of scissors from a small
table. Complainant could not struggle
and shout for help even if her mother was then in their house nearby because of
accused-appellant’s threats to kill her.

Consequently, accused-appellant took off Rowena’s clothes and her
panties and touched her private part while at the same time threatening to kill
complainant if she resisted, and telling her to “pagbigyan mo
ako”. He went on top of her and
inserted his penis into her private part while his hands were fully pressed on
her hands. After about ten minutes,
accused-appellant pulled out his penis and asked Rowena to put on her clothes
and told her to go home. She did not
report immediately the incident to her mother nor to anybody for fear for her
life.

Rufina Almira de los Santos, mother of the victim, testified that at about 12:00
o’clock noon of that day, Rowena went home but she noticed that Rowena was walking
with her two legs apart. Rufina then
asked her daughter about the latter’s unusual way of walking, but Rowena
replied that she was having her menstruation. On the third day, Rufina noticed that Rowena was bleeding profusely and
there were blood clots coming
out of her private part, so
Rufina brought Rowena to the Beato-Cauilan Clinic. After the examination, Dr. Paciencia Beato-Cauilan, an
obstetrician at the clinic, told Rufina that Rowena was used (‘ginamit’). Then and there, Rufina confronted Rowena in front of the doctor
and Rowena admitted that she was indeed used by accused-appellant. Rowena told her mother that she was afraid
to reveal what had happened because she was threatened by accused-appellant. From the clinic, mother and daughter proceeded
to the Sta. Rosa Police Station where their statements were taken.

Dr. Paciencia Beato-Cauilan’s testimony, on the other hand, is to
the effect that the physical examination of Rowena revealed that there were
hymenal lacerations of the vagina. She
further said that something had forcibly entered the vagina so she advised the
patient to go to the National Bureau of Investigation for further
examination. However, no written report
of the examination was prepared as the
examination was just a mere slight pelvic check-over which took about five to
ten minutes to finish.

In addition, Major Dario
L. Gajardo, a Medico-Legal Officer of the PC Crime Laboratory at Camp Crame,
also testified that he conducted a physical examination of the victim. In his written Medical-Legal Report No.
N-1861-85 dated June 27, 1985, he declared that based on the examination
conducted, there were deep and shallow but healed lacerations in the hymen of
the victim and there were also injuries in the labia menora. He further testified that vaginal smears are
positive for sexually transmitted disease (Gonorrhea) but negative for
spermatozoa. He concluded that the
lacerations were caused by sexual intercourse and that the victim, at the time of
the examination, was already in a non-virgin states physically.

Assailing the
aforementioned decision, accused-appellant assigns the following as errors
allegedly committed by the court a quo, to
wit:

“I

THE TRIAL COURT ERRED GRAVELY IN FINDING
THAT THE CRIME OF RAPE WAS COMMITTED THROUGH FORCE AND VIOLENCE, WITH THE USE
OF DEADLY WEAPON AND ABUSE OF SUPERIOR STRENGTH, AND IN NOT HOLDING THAT THE
LONE AND UNCORROBORATED TESTIMONY OF ROWENA IS NOT IMPECCABLE AND DOES NOT
RINGS (sic) TRUE ‘THROUGHOUT’.

II

THE TRIAL COURT ERRED GRAVELY IN FINDING
THAT INTIMIDATION WAS EMPLOYED BY ACCUSED UPON THE THIRTEEN YEARS (sic) OLD
GIRL SPECIALLY VIEWED FROM HER ANSWER TO QUESTION NO. 20 OF HER SWORN
STATEMENT, AND IN CONCLUDING THAT BECAUSE ROWENA WAS STILL IMMATURE TEENAGER
HER TESTIMONY IS THE TRUTH AND IN NOT FINDING THAT HER LACK OF DETERMINED
RESISTANCE (DID NOT EVEN MAKE AN OUTCRY) WHEN ALLEGEDLY ATTACKED AND HER ACTS
IMMEDIATELY BEFORE, DURING AND AFTER THE ALLEGED RAPE CASTS (sic) DOUBT ON HER
UNRELIABLE STORY.

III

THE TRIAL COURT ERRED GRAVELY IN NOT
FINDING THE TESTIMONY OF ROWENA AS CONSISTENTLY INCONSISTENT WITH HER OWN PRIOR
STATEMENTS ON MATERIAL POINTS.

IV

AND LAST BUT NOT THE LEAST, THE TRIAL COURT
ERRED GRAVELY, IN CONVICTING THE ACCUSED AND IN NOT ACQUITTING HIM ON GROUNDS OF
FAILURE OF THE PROSECUTION TO PRESENT CREDIBLE EVIDENCE AND PROOF BEYOND
REASONABLE DOUBT.”

(pp. 2-3, Appellant’s Brief, pp. 29-30,
Rollo.)

After a careful review of
the records, We are convinced that, indeed, accused-appellant had raped
complainant with the use of force and intimidation at the time and place and in
the manner described by the latter. Verily, while both of them were watching television at the ground floor
of the two-storey house of accused-appellant, the latter suddenly grabbed
complainant and dragged her to the second floor of the house (TSN, June 29,
1987, pp. 16, 19-20). Upon reaching the upper floor of the house,
accused-appellant threatened to kill complainant with a pair of scissors, which
he got from a table, if the complainant does not accede to accused-appellant’s
libidinous desire (TSN, June 29, 1987, pp. 5, 21). Facing possible death, the minor Rowena inevitably gave in to the
salacious desire of the accused-appellant. We can understand the meek reaction of Rowena to that harrowing
experience of hers even when the
defense claims that she should have shouted for help. Rowena, it is to be stressed, was just over
12 years old at the time of the commission of rape, an age at which one could
easily be cowed and coerced.

Although the trial court erred in finding that there was violence
in the commission of the felony, yet, force and intimidation were definitely
employed, enough to constitute the crime committed, as rape. Intimidation includes the moral kind, such
as the fear caused by threatening the
girl with a knife (2 Cuello Calon, Codigo Penal, 12th Edition, p.
537; People vs. Garcines, 57 SCRA 653 [1974]). In the case at bar, rape was committed
when intimidation was used on the victim and the latter submitted against her will because of fear for her life and personal safety (People vs. Arengo, 181 SCRA 344 [1990]).

Moreover, We cannot fault the victim for the delay in reporting
that odious and despicable incident. One can not expect a 12-year old girl to act like an adult or a mature
and experienced woman who would have the courage and intelligence to disregard a threat to her life and complain immediately
that she had been forcibly sexually assaulted (People vs. Tampus, 88 SCRA 217 [1979]). Accordingly, the delay in divulging her
incubus to the doctor, and who in turn told it to her mother, is understandable
and was sufficiently explained.

Accused-appellant asseverates that the testimony of the
complaining witness was not
plausible, satisfactory, and sincere since there were inconsistencies in her
testimony in open court vis–a–vis her sworn statement made
at the police station.

We are not persuaded.

The alleged inconsistencies referred to by the accused-appellant
in his brief concern only trivial, minor, and insignificant details.

Accused-appellant points to a supposed inconsistency between
complainant’s testimony that she was raped in her house on May 29, 1985 (TSN,
June 29, 1987, p. 3) and her sworn statement made at the police station that she
was raped at accused-appellant’s house (Sworn Statement, p. 2; Original Record,
p. 3). He further avers that if
complainant was indeed raped in her house,
it would be unnatural for accused-appellant
to have subsequently asked her to go home. Nevertheless, it is clear enough from the testimony of Rowena that the
rape took place in the house of accused-appellant, and the inconsistency with
her previous statement given at the police station was explained, thus:

“Atty.
Erner Saul: Now you said this rape was
happened (sic) in your house, now you stated again, he ordered you to go home,
can you explain that how (sic)?

A:    In
the house of Victor Olivar, sir.

(tsn, June 29, 1987, pp. 4-5.)

Atty.
Garcia: Miss Witness, you testi­fied
that on May 29, 1985 at 11:00 o’clock in the morning you were watching TV, may
we know where did you watch TV?

A:    At
their house, sir.

Q:   When
you said ‘kanila’ to whom are you
referring to?

A:    At their (sic) house of Victor
Olivar, sir.

(tsn, June 29, 1987, p. 15)

Q:   You
stated a while ago why do you watching (sic) TV together with Victor Olivar, is
that correct?

A:    Yes,
sir.

Q:   What
did he do?

A:    He
pulled me, sir.

Q:   Towards
where?

A:    Towards
the upper floor, sir.”

(tsn, June 29, 1987, p. 16)

The seeming inconsistency
was brought about by confusion and merely represents minor lapses during Rowena’s direct
examination, and can not affect her credibility. Minor lapses are to be expected when a person is recounting
details of a humiliating experience which are painful to recall. Rowena was testifying in open court, in the
pre­sence of strangers, on an extremely intimate matter, which is not normally
talked about in public. Under such circumstances it is not surprising that her narration was less than
letter-perfect (People vs.
Magaluna, 205 SCRA 266
[1992], cited in the case of People
vs. Abuyan, G.R. No. 95254-55, July 21, 1992). Moreover, the inconsistency may be
attributed to the well-known fact that the atmosphere of the courtroom can
affect the accuracy and manner of a witness in answering questions (People vs. Como, 202 SCRA 200 [1991]); People vs. Serdan, G.R. No. 87318, September 2, 1992).

Significantly,
accused-appellant himself confirmed that on the date in question, complainant was
at his house, although he wanted to convey
the idea that Rowena, an innocent, inexperienced minor, made advances on
him. He testified under
cross-examination that:

“Fiscal:

Q: You said on May 29, 1985 in the evening of
about 11:00 o’clock you were in your house and then you were awaken (sic)
because somebody was leaning on your left thigh and that somebody is the
complaining witness Rowena delos Santos, is this true or not?

A:    Yes,
sir.

Q:   And
did you recognize the complaining witness at that moment when you said she was
leaning on your left thigh?

A:    Yes,
sir.

Q:   What
did you do when you recognized her?

A:    I
kissed her, sir.

Q:   What
else did you do?

A:    Nothing
more besides kissing her, sir.

Q:   How
many times did you kiss her?

A:    Only
once, sir.

Q:   Which
part of her body?

A:    In
her cheek, sir.

Q:   Left
or right cheek?

A:    I
cannot recall, sir.

Q:   Did
you embrace her besides kissing her?

A:    No,
sir.

Q:   How
long did you talk to her and kiss her?

A:    I
just kissed her cheek, sir.

Q:
  Why did you kiss her?

A:    Because
I thought it was my wife, sir.

COURT:

Q:   What
date was that?

A:    Around
11:00 o’clock in the morning, sir.

Q:   Why,
was she not facing you when she hold (sic) her hands on your left thigh?

A:    She
was leaning with her left hand on my thigh while her side is (sic) facing me,
your Honor.

FISCAL:

Q:   Which
is correct your alleged incident happened on 11:00 o’clock in the morning or
11:00 in the evening of May 29,
1985?

A:    11:00
o’clock in the morning, sir.

Q:   Why
were you then sleeping at 11:00 o’clock in the morning of May 29, 1985?

A: Because I was then a shoemaker
and I had to work late at night, so the following morning my wife told me to
watch and oversee the showmaking (sic) because I was so sleepy and I told the
bordaderas to wake me up whether (sic) they needed anything, sir.

COURT:  
Did you usually sleep at 11:00 o’clock in the morning during those (sic) time?

A:    Yes,
your Honor.”

(TSN, February 20, 1989, pp. 14-17).

Accused-appellant also contends that there was inconsistency
between the testimony of complaining witness in open court that he was armed
with a pair of scissors and the sworn statement of the former executed at the
police station that at the time of the commission of the crime,
accused-appellant was unarmed, which would otherwise belie and impugn the
findings of the court a quo that rape was committed with the use
of a deadly weapon.

We do not agree. As
eloquently explained by Justice Leo Medialdea in Biala vs. Court of Appeals,
191 SCRA 50 (1990):

“… it is settled that contradictions made between averments in a
sworn statement and those made during testi­mony in open court may be explained
by the fact that a sworn statement will not always disclose all the facts and will oftentimes and without design
incorrect­ly describe some the material occurrences narrated.”

It is a time-honored tenet as this Court has repeatedly ruled
that the findings of facts of trial judge who tried the case and heard the
witnesses, should not be disturbed on appeal and should be given considerable
weight and respect, especially on the credibility of witnesses, since he was in a better position to decide the
question, having heard and observed the demeanor, attitude, conduct and
deportment of witnesses (People vs. Dilao, et al., 100 SCRA 358 [1980]; People
vs. Cabrera, 100 SCRA 424 [1980]; People vs. Badeo, 204 SCRA 122
[1991]; People vs. Honrada, 204 SCRA 858 [1991]; People vs. Atilano,
204 SCRA 278 [1991]; People vs. Lardizabal, 204 SCRA 320 [1991]; People
vs. Lee, 204 SCRA 900 [1991]). The
only exception to the rule is when a trial judge has plainly overlooked
substantial facts and circumstances which might affect the result of the case
if not properly considered (People vs. Realon, 99 SCRA 422 [1980]; People
vs. Laganzon, 129 SCRA 333 [1984]; People vs. Pascual, G.R. No.
88282, May 6, 1992; People vs. Simon, G.R. No. 56925, May 21, 1992; People
vs. Blas, G.R. No. 97930, May 27, 1992; People vs. Serdan, G.R. No.
87318, September 2, 1992). In the case
at bar, We find no justifiable and compelling reason to disturb the findings and
conclusions of the trial court on the credibility of the complaining witness.

Finally, accused-appellant claims that the trial court erred in
convicting him of rape, insisting
on his denial of having raped the victim and maintaining that the uncorroborated
testimony of the complaining witness is not sufficient to convict him. Accused-appellant’s posture of innocence is
flimsy and jejune. As in any other rape case, it is most often
that the only witnesses to its commission are the victim and the offender. Consequently, the only testimony available to prove directly
the commission of rape is that of the victim herself. And as long as such testimony of the offended woman is positive, convincing, and credible, We will not
hesitate to render a judgment of conviction. Furthermore, in weighing contradictory and opposing statements, greater
credence must generally be given to the positive testimony of the prosecution
witnesses than to the denial of the defendant (People vs. Español, [CA],
51 O.G. 2433; People vs. Marilao, 177 SCRA 271 [1989]; People vs.
Adap, 189 SCRA 413 [1990]; People vs. Mariano, 191 SCRA 136 [1990]).

WHEREFORE, the
decision appealed from is hereby affirmed in toto, with costs
against the accused-appellant.

SO ORDERED.

Gutierrez, Jr., Acting C.J., (Chairman), Bidin, Davide, Jr., and Romero, JJ., concur.