PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MELCHOR OLARTE ALIAS “TOLISOK,” ROGER “NANO” VINEARTA, ACCUSED-APPELLANT.

As the husband lay hogtied and their two young children watched
in tears and fright, the wife was raped by three men in succession. Then they proceeded to ransack the house and
the small store, taking money and various articles of little value. They left with the warning that the couple
would be killed if they reported their misadventure to the authorities.

Pedro Norbe and his wife Arlene kept silent for fear of their
lives. But three days later, Melchor
Olarte was arrested for illegal possession of firearms and the rumored robbery
with rape in the Norbes house came up during his investigation. Olarte was taken to the spouses who, after
initial hesitation, finally identified him as one of the robber-rapists. Further questioning elicited from him the
information that his companions were Roger Vinearta and Felino Bagsik. The three men were eventually charged with
the crime of robbery with rape,^[1] but
only Olarte and Vinearta were tried because Bagsik had disappeared.

The principal witnesses for the prosecution were the Norbe
spouses. They narrated in detail the
events that transpired at one o’clock in the morning of August 18, 1990, at
their house and store at Barangay Alangilan in Bacolod City.

They were awakened that morning by a knocking at their door by
someone who wanted to know if he could buy some whisky. He was accompanied by two other men. When told that there was no whisky for sale,
they asked for a drink of water. Arlene
did not want to let them in but Pedro opened the door to give them the water. He was then also holding a kerosene
lamp. The three men announced that they
were members of the New People’s Army and forced their way into the house. One of them pointed a gun at the
couple. Pedro described him later as
about 18 years old, 5’2″ or 5’3″ in height, with curly hair, dark
complexion, and a mole below his right eye. This was a correct description of Vinearta. Pedro said he also recognized the second man as Olarte, who was
armed with a bolo, because he was one of their regular customers. However, he could not at that time see the
third man, who was leaning on the wall outside their house.^[2]

Once inside the house, the three men, who had now covered their
faces, tied Pedro’s arms and legs and pushed him to the ground. As one of them stood guard over Pedro, the
two others seized Arlene and at gunpoint ordered her to lie down on the floor and undress. She begged for mercy and said she was three months pregnant but
her plea was ignored. As Arlene’s two
young children watched in terror, Vinearta forced his lust upon their
mother. He then exchanged places with
the third man who had been training his gun on her and this person took his
turn in attacking Arlene. Later, his
own lechery sated, he was followed by Olarte, who also inflicted his own
outrage on the helpless woman. Pedro
knew what was happening to his wife as she was crying for help, but he was
unable to defend her.^[3]

After the successive rapes, the three men took some clothes from
the measly stock of the store, a lady’s wrist watch, and P200.00 in cash, all
amounting to P2,755.00.^[4] They
left with the death threat that kept the couple mute until the police brought
Olarte to them for identification.

Vinearta was positively identified by Arlene, who clearly saw him
when he entered the house. Pedro’s
description of Vinearta at the trial matched him perfectly although this
accused was not in the courtroom at the time. There was no difficulty in recognizing Olarte, who was the couple’s
townmate and regular customer. The
Norbe house was illuminated by two kerosene lamps when the robbery and rape
took place.^[5]

The two accused pleaded alibi and denial. Olarte said that in the morning in question,
he was drinking tuba in his mother’s house, which was about four
kilometers from Barangay Alangilan.^[6]
Vinearta was somewhere farther. He said
he was then sleeping in his house in Talisay, which was about eight and a half
kilometers away from the scene of the crime.^[7]

After assessing the evidence of the parties, Judge Simplicia S.
Medina of the Regional Trial Court of Bacolod City convicted both accused and
sentenced them as follows:

Premises considered, both accused Melchor Olarte alias
“Tolisok” and Roger “Nano” Vinearta are hereby sentenced to
suffer the penalty of reclusion perpetua and to pay jointly and severally the
amount of P2,755.00 value of the things taken and costs.^[8]

The appellants now argue in their brief that they should not have
been convicted on the basis of the inconclusive and inconsistent testimonies of
the Norbe spouses. For his part, the
Solicitor General agrees with the conviction of Olarte but feels Vinearta had
not been sufficiently identified and so should be exonerated.

The Court has gone over the record of this case and is satisfied
that both Olarte and Vinearta were positively identified as two of the men who
robbed and raped in the Norbe house in the early morning of August 18, 1990.

Pedro described Vinearta in detail, having seen his face clearly
by the light of the lamp he was holding when he opened the door to these intruders. Arlene affirmed the description from her own
clear look at his face when she saw him enter their house. There was no mistaking Olarte either because
he was a regular customer of the Norbe store and the spouses had known him long
as a townmate. His mask even fell off
as he was raping Arlene.

It is noteworthy that Pedro and Arlene had no known reason to
implicate the two in a false charge. When they pointed to them as the culprits who robbed and polluted their
house, they were only relating under oath the incident of which the two men
stood accused.

By contrast, the alibis offered by Olarte and Vinearta were both
unconvincing. They were not even
corroborated. In any event, their
denials cannot prevail over their positive identification by the Norbe spouses
as two of the men who committed the crime of robbery with rape in their house
on August 18, 1990.

We are not persuaded by the Solicitor General’s argument that
Vinearta was implicated by Olarte only after the latter had been illegally
arrested and tortured by the police.^[9] There
is no evidence of these irregularities outside of Olarte’s own unsupported
statements. In any event, his testimony
served merely to corroborate the Norbes’ identification of Vinearta which was
by itself sufficient.

Article 294, paragraph 2, of the Revised Penal Code provides:

Any person guilty of robbery with the use of violence against or
intimidation of any person shall suffer:

(1) x x x

(2) The penalty of reclusion temporal in its medium period to reclusion
perpetua, when the robbery shall have
been accompanied by rape x x x

Provided, however, that when the robbery accompanied with
rape is committed with the use of a deadly weapon or by two or more persons,
the penalty shall be reclusion perpetua to death. (As amended by PD No. 767).

This case comes under the proviso because the crime was committed
by two or more persons, who were armed with a gun and a bolo. It is regrettable that under Article III,
Sec. 19 (1) of the Constitution, which proscribes the death penalty except only
when for compelling reasons, Congress prescribes it for certain heinous
offenses, the appellants can be sentenced only to reclusion perpetua. This penalty cannot be increased even if the
crime was aggravated by craft, nocturnity and dwelling.^[10]
However, the Court can still require them to pay Arlene Norbe civil indemnity
in the amount of P50,000.00 for the rapes committed against her. This was omitted by the trial court. We repair the omission, although the award
is a small retribution, indeed, for the atrocities committed upon her.

The Court notes with disgust that Arlene was raped in the
presence of her two children, aged 3 and 5 only, who did not have to be exposed to such ugliness. Mercifully, the husband, who was also present,
was prevented from seeing the violation of his wife although he could feel and
hear what was happening because of her distressed cries. The depravity of the appellants is
despicable; even the unthinking beast would have been less insensitive.

WHEREFORE, the appeal is DISMISSED and the judgment dated
July 29, 1991, is AFFIRMED, with the modification that the appellants shall
also pay, jointly and severally, damages in the amount of P50,000.00 to Arlene
Norbe. Costs against the appellants.

SO ORDERED.

Davide, Jr., Bellosillo, and
Quiason, JJ., concur.

^[1]
Rollo, pp. 5-6.

^[2]
TSN, February 27, 1991, pp. 5-8, 17-22, 36, 49-50; May 13, 1991, pp. 3-6.

^[3]
TSN, May 13, 1991, pp. 7-20; February 27, 1991, pp. 11-12, 51.

^[4]
Ibid., pp. 17-21; Records, p. 1.

^[5]
TSN, May 15, 1991, p. 15.

^[6]
TSN, July 9, 1991, pp. 46, 64-65.

^[7]
Ibid., pp. 12-13.

^[8]
Rollo, p. 20.

^[9]
Ibid., p. 73.

^[10]
People v. Napili, 85 Phil. 521; People v. Beringuel, 192 SCRA
561; People v. Mesias, 199 SCRA 20.