G.R. No. 104947. June 30, 1994
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. GILBERT DELA PEÑA Y PONCE, ACCUSED-APPELLANT.
KAPUNAN, J.:
At the time of the alleged rape, Erly Rose P. Marasigan was a nine
(9) year old third-grade student of a public elementary school in Mayasan,
Valenzuela, Metro Manila. On school
days, she would take a shortcut using an alley between her school and her home
in order to attend her classes between 12:00 noon and 5:00 p.m. On July 18, 1991, the day of the alleged
incident, while traversing this route, she noticed a man standing at a corner
of the alley, whom she later on identified as the defendant-appellant, Gilbert
de la Pena. As she passed by, he
grabbed her left arm with both of his hands, pulled her towards a grassy area
and threatened bodily harm if she would not keep quiet.[1]
The accused-appellant ordered Erly Rose to lie down. He then pulled his pants and briefs down,
removed her panties and raised her skirt. He kissed her and attempted to insert his penis into her vagina to no
avail. According to the testimonies of
both the complainant and the accused-appellant, he did not have an erection and
was unable to insert his penis into her vagina. Failing in this, the accused-appellant instead fondled his
victim’s vagina and inserted his finger into the vaginal orifice.[2]
During the process, de la Pena hit his victim in the stomach and
on both cheeks with his fist. Erly Rose
cried, then tried to play dead. The
accused appellant thereafter hurriedly fled the scene.[3]
The complainant pretended to be dead for another five
minutes. When she was finally sure that
her attacker was no longer around, she pulled up her panties, gathered her
belongings and staggered away from the area towards her home. On her way home, Romeo Brojas, a neighbor
and friend of her father noticed that her clothes were caked with mud and that
she was crying.[4]
Informed about the incident he and some neighbors immediately looked for the
accused-appellant and found him in Rincon Road, Valenzuela. Erly Rose identified her attacker when he
was found. Accompanied by her father
and some neighbors, she thereafter narrated the details of the attack to the
Valenzuela Police on the same day.[5]
Pursuant to a written request for a medical examination by the
Valenzuela Police, she was subsequently examined by Dr. Lowella Nario of the
National Bureau of Investigation who found no physical evidence of penetration
during her examination of the victim. According to Dr. Nario, there was no sign of injury on the victim’s
private parts. The vagina was normal,
without a reddening.[6]
An information signed by the state prosecutor, dated 30 July
1991, charged the accused with the crime of ATTEMPTED RAPE based on the complaint
affidavit of the victim.[7]
However, a criminal complaint signed by the
state prosecutor subsequently charged the accused with STATUTORY RAPE,
committed as follows:[8]
That on or about the 18th day of July, 1991, in the Municipality of
Valenzuela, Metro Manila, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force and intimidation,
did then and there willfully, unlawfully and feloniously lie with and have
sexual intercourse with ERLY ROSE P. MARASIGAN, a minor, 9 years old, against
the latter’s will and without her consent.
Contrary to law.
Following trial in the court below, and after assessing the
evidence of the accused, Judge Teresita D. Capulong of the Regional Trial Court
of Valenzuela, Metro Manila, found de la Pena guilty as charged and sentenced
him to suffer the penalty of reclusion perpetua and to pay the costs.[9]
In his brief, the appellant contends that a surfeit of the
evidence presented at trial negates a finding of Statutory Rape. He avers that the victim, Erly Rose
Marasigan, during direct examination, herself testified that no penetration had
occurred, that the medico-legal examination conducted by the National Bureau of
Investigation yielded negative results, and that there was an attempt, but that
no carnal knowledge had actually occurred.[10]
We agree.
Settled is the rule that full penetration of the vaginal orifice
is not an essential ingredient in the commission of the crime of rape.[11]
The mere touching of the external genitalia by a penis capable of consummating
the sexual act constitutes carnal knowledge.[12] When
accomplished together with the other elements defined in the Revised Penal
Code, the offense constitutes rape.
It is likewise settled that the absence of physical findings on
medical examination does not negate a finding that carnal knowledge had
actually occurred. The absence of
seminal fluid, spermatozoa, abrasions, lacerations, hematoma etc., around the
genital area or the presence of an intact hymen does not automatically lead to
a conclusion that no act of rape had occurred or that the act was in fact
consensual. In fact, the absence of a
medical certificate is not indispensable in the crime of rape.[13]
However, our decisions finding a case for rape even if the attacker’s penis merely
touched the external portions of
the female genitalia were made in the context of the presence of the existence
of an erectile penis capable of full penetration. The physiologic impossibility of penetration absent an erection-
complete or otherwise- cannot be gainsaid. If, because of the victim’s vigilant attempts at warding off her
attacker’s sexual advances an accused in a case of rape is unable to accomplish
the act of completely penetrating his victim’s vaginal orifice, a charge for
rape under existing jurisprudence can be sustained anyhow, because full
penetration would have been accomplished if the penis were erect, were it not
for the victim’s vigilance or the occurrence of other circumstances which might
have frustrated the accomplishment of complete penetration. That is not the case here.
In the case at bench, the victim, Erly Rose P. Marasigan
categorically stated on at least two occasions that the accused-appellant was
unable to consummate the act of rape. On direct examination she admitted:[14]
Fiscal:
Q Why
were you not able to reach the school on July 18, 1991?
A Because
I happened to pass by that man, sir.
Q What
place did you pass by that man?
A In
a curve of a shortcut area, sir.
Q When
you saw the man when you were able to turn to this area what was he doing?
A He
was just standing by, sir.
Q To
where was he looking when you saw him?
A He
was looking at me, sir.
Q Now,
what happened when you were
already . . . Was your path lighted on the side of the man?
A Yes,
sir.
Q When
you were already near this man who was standing what happened?
A As
I passed by him he immediately held my arm, sir.
Q How
did this man hold your arm?
A With
his two hands, sir.
Q What
arm did he hold you, left or right arm?
A Left,
sir.
Q After
than what did he do?
A He
pulled me towards the grassy area, sir.
Q And
then what did he do?
A He
ordered me to keep quiet if not he will kill me, sir.
Q When
he told you that what did you do?
A I
kept quiet and cried, sir.
Q Now,
this man who pulled you towards the grassy area can you still recognize him?
A Yes, sir.
Q Can
you tell us if that man is here now?
A Yes,
sir.
Q Will
you point to him?
A That
man wearing white t-shirt, sir. (Person
pointed to, when asked, gave his name as Gilbert de la Pena).
Q When
he told you to keep quiet or he will kill you what did you do next?
A He
ordered me to lie down, sir.
Q And
did you lie down?
A Yes,
sir.
Q And
then what did you do next?
A He
pulled down his pants and brief, sir.
Q When
you said he pulled down he just pulled it down he did not remove it?
A Yes,
sir.
Q What
about you, you said you obeyed him when he told you to lie down. What
did he tell you to do if any as you were lying down?
A He
removed my panty, sir.
Q You
said you were wearing skirt which is your school uniform, what did he do with
your skirt?
A He
just raise (sic) it up, sir.
Q And
then he personally removed your panty?
A Yes,
sir.
Q
And then what did he do next after that?
A Pinipilit
niyang ipasok ang ari niya sa ari ko, sir.
Q When
you said ari niya what do you mean by that?
A His
penis, sir.
Q And when you said ari ko what do you
mean by that?
A My
vagina, sir.
Q How
did he do that, how was he able to do that?
A He
pressed his right hand on the ground and then he held his penis by his left
hand and then tried to insert (sic) it to my vagina, sir.
Q What
was his position, you said you were lying down what about him, what was his
position?
A He
was kneeling with one of his hands pressed on the ground, sir.
Q And
when he was kneeling are you saying both his knees were on the ground?
A Yes,
sir.
Q And where are you in relation to his
two knees?
A I
was in front of him lying down, sir.
Q Under
his knees?
A Yes,
sir.
Q Now,
what happened, was he able to insert his penis?
A No,
sir.
On cross examination she again repeated before the trial court
that no carnal knowledge had actually occurred:[15]
ATTY. PEREZ:
Q In this case you were asked on Page
12 of the Transcript of Stenographic Notes dated November 4, 1991 and I quote,
‘Question: Where did it reach if any,
his penis? Answer: Outside, your
Honor. He was not able to insert it’. Do
you still confirm this statement of yours?
A Yes,
sir.
All throughout, the victim has been consistent in stating that no
penetration had occurred because the accused-appellant (as he himself admitted)
was too scared to have or sustain an erection. In fact, immediately after the incident, in the afternoon of the attempt
she stated the following in answer to investigating policeman’s question:[16]
T: Naipasok ba nitong si Gilbert de la Pena ang
titi niya sa pekpek mo?
S: Hindi po.
Testifying in his own behalf, the accused had never actually
denied that the attempt had been made:[17]
ATTY. PEREZ:
Q You have heard the complaining witness
Erly Rose Marasigan testified here that during the attempt on her by you, you
molested her to her private parts but your private parts did not enter her
private part, what can you about this?
A Yes,
sir.
Q She
also testified that you did not experience any erection of your private part at
that time that you molested her?
A Yes,
sir.
It would be important to stress, in the context of our past
decisions sustaining a charge of rape in cases where complete penetration had
not occurred, of the existence of an underlying assumption of a male sexual
organ physiologically capable of accomplishing the act of full penetration at
the time of the event, whether or not the latter had actually occurred. In the instant case, both the victim and the
accused-appellant were in agreement in their trial court testimonies that no
penetration had occurred.[18]
There is doubt as to how far the accused’s penis had been outside the victim’s
external genitalia and there is equal doubt as to whether or not the
accused-appellant’s penis had in any way touched the external pudenda or any
part of the vaginal wall. In the
absence of a conflict between the statements made by the accused and that of
his victim-made under oath- as to what actually occurred at the time of the
incident, we see no reason why this Court should sustain the trial court’s
conclusion finding the defendant guilty of rape. Moreover, the medical findings support our conclusion.[19]
The trial judge’s suggestion that the complainant’s admission
that there was no erection cannot be given weight because finding out whether
the accused-appellant’s penis were erect “would be the last thing on the
mind of the victim complainant,” flies in the face of the consistent
admissions by the complainant on different occasions that the fact of carnal
knowledge did not occur. Moreover,
during the incident, she had the intelligence and the remarkable presence of
mind to take a grip of the situation she was in at the time of the attack and
play dead. Given her presence of mind,
it would have been impossible for her not to notice whether or not the accused-appellant’s
penis had been erect. In spite of her
age, her acts during and after the attempt provide no occasion for us to doubt
the veracity of her statements.
We note that, at least, on one occasion, during her salaysay (sworn statement) before
the Valenzuela Police, the suggestion had been made by the complainant that
carnal knowledge had occurred during the incident. Using the vernacular she said: “(H)inubaran niya ako ng panty. Pagkatapos sinikmuraan niya ako. Pagkatapos ay kinantot
niya ako.” However, following clarificatory questions by the
policeman – without suggestion or prodding- she stated that the accused appellant
had been unable to insert his penis into her genital orifice. She narrated the same fact subsequently in
her testimony before the trial court.
Rape is committed by having carnal knowledge of a woman.[20] The
gravamen of the offense of statutory rape as provided for in Article 335, paragraph 3 of the Revised Penal
Code is carnal knowledge of a woman below 12 years old. In the case at bench, there was an attempt,
which the accused-appellant does not deny, but carnal knowledge did not
actually occur.
Of course the failure by the appellant to consummate the act of
rape does not make his attack on an innocent and defenseless girl less
reprehensible, particularly in the instant case where his nine year old victim
has apparently not even reached her menarche
yet. The psychological scar
inflicted by the accused’s despicable act will remain with her forever,
occasionally surfacing from the recesses of her own subconsciousness, in one
way or another. If the scar runs deep,
if it makes an imprint into her own personality, its effects would define the
way she would eventually deal with others, the way she would mother her future
children. The potential effects can
then go beyond her own lifetime, scarring her children, as well as those whose
lives are touched by her. The magnitude
of evil wrought on an innocent, defenseless child by an adult’s sexual attack
is far-reaching and its effects can never be restored by the punishments we
mete on these, evil, sexual offenders. However, it is incumbent upon us to impose the proper punishment for the
proper crime.
We note that the
original information filed by State Prosecutor Bernard S. Razon on July 30,
1991 charged the accused appellant with attempted rape.[21]
The accused himself in this case was willing to plead guilty to the charge of
attempted rape. This case would not
have proceeded this far, saving government money and resources, had the charge
been made consistent with the preliminary findings.
Given the evidence, and the essential absence of conflict between
the victim’s and the appellant’s testimonies in this case, a verdict finding
the accused guilty of ATTEMPTED RAPE would be much more appropriate.[22]
Accordingly, the proper penalty which should be imposed in the case at bench is
prision mayor by virtue of Article 51 of the Revised Penal Code which
lowers the penalty in attempted felonies to two degrees. Taking into account the Indeterminate
Sentence Law he ought to be sentenced to a penalty whose minimum should be
within the range of prision correccional and whose maximum should be
within the range of prision mayor.
WHEREFORE, PREMISES CONSIDERED, the decision of the trial
court is hereby modified in that appellant is found guilty only of ATTEMPTED
RAPE, the act of consummated rape not having been proven beyond reasonable
doubt. By virtue of Article 51 of the
Revised Penal Code lowering the penalty in attempted felonies to two degrees
and taking into account the Indeterminate Sentence Law and the absence of
modifying circumstances, the accused is hereby sentenced to suffer an
indeterminate penalty of two (2) years and six (6) months of prision
correccional medium as minimum to eight (8) years and two (2) months
of prision mayor medium as maximum.
SO ORDERED.
Cruz, (Chairman), Davide, Jr., Bellosillo, and Quiason, JJ.,
concur.
[1]
TSN, November 4, 1991, pp. 3–12
[2]
Id., TSN, December 4,1991, pp. 43; TSN, February 5, 1992, pp. 67-68.
[3]
Id., February 5, 1992, pp. 69.
[4]
TSN, January 13, 1992, pp 29-32.
[5]
Id.
[6]
TSN, January 22, 1992, pp. 54-56, 58.
[7]
Record, p. 1.
[8]
Record, p. 12.
[9]
Decision, pp. 7; Rollo, p. 10.
[10]
Brief for Appellant, pp. 3-7; Rollo, pp. 53-57.
[11]
People vs. Lomibao, 55 Phil 616 (1931); People vs Pastores, 40
SCRA 498 (1971); People vs. Catalino Oscar, 48 Phil 527 (1925); People vs.
Amores 58 SCRA 505 (1974). People vs.
Abonada, 169 SCRA 530 (1989); People vs. Navarro 221 SCRA 684 (1993).
[12]
People vs. Somera, 170 SCRA 428 (1989).
[13]
People vs. Almenario, 172 SCRA 268 (1989).
[14]
Supra note 1.
[15]
Supra note 2.
[16]
Salaysay, July 18, 1991; Record, pp. 3.
[17]
TSN, February 5, 1992, pp. 67-68.
[18]
Supra notes 1 and 2.
[19]
0n examination (Living Case No. MG-91-751, July 19,1991) Dr. Louella
Nario had the following findings:
“Conclusions:
1. No evident
sign of extragenital physical injuries noted on the body of the subject at the
time of the examination.
2. Hymen,
intact and its orifice small (0.6 cms. in diameter) as to preclude complete
penetration by an average sized, adult, Filipino male organ in full erection
without producing any genital injury.
[20]
Article 335 of the Revised Penal Code States:
Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation;
2. When the
woman is deprive of reason or otherwise unconscious; and
3. When the
woman is under twelve years of age, even though neither of the circumstances
mentioned in the two next preceding paragraphs shall be present.
XXX (Emphasis supplied).
[21]
Supra Note 7.
[22]
The rule is that when the offense proved is more serious than that which is
charged, the accused can only be convicted of the offense charged. However, when the offense proved happens to
be a lesser one, as in the case at bench, the accused should be convicted of
the offense which has been established by the evidence in court which is
included in the offense charged. Section 4 of Rule 120 of
the Rules of Court states:
“Sec. 4. Judgment in case of variance between
allegation and proof.- When there is a variance between the offense charged in
the complaint or information, and that proved or established by the evidence,
and the offense as charged is included in or necessarily includes the offense
proved, the defendant shall be convicted of the offense proved included in that
which is charged, or of the offense charged included in that which is
proved.”