EFREN ANCIRO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND THE HONORABLE COURT OF APPEALS, RESPONDENTS.

The principal issue raised in this petition is the propriety of
the trial court’s denial of a motion to strike out the testimony of the private
complainant whose cross-examination was not finished because she had left for
abroad.

The petitioner was prosecuted for the rape of Gloria Dalin, a
14-year old lass, allegedly committed on 23 February 1979 in Bangkal, Carmona,
Cavite. The case was docketed as
Criminal Case No. BCR-79-154 of the then Branch 5 of the Court of First
Instance, later Branch 19 of the Regional Trial Court of Bacoor, Cavite. The case was subsequently transferred to
Branch 21 of the Regional Trial Court of Imus, Cavite.^[1]

On 9 March 1988, the trial
court promulgated its decision,^[2] the dispositive portion of which reads as
follows:

“WHEREFORE, finding the accused guilty beyond reasonable doubt
of the crime of rape as defined and penalized under Art. 335 of the Revised
Penal Code, said accused is hereby sentenced
to suffer the penalty of imprisonment to an indeterminate term ranging from six
(6) months and one (1) day of prision correccional minimum, as minimum, to
eight (8) years and one (1) day of prision mayor medium, as maximum, and to pay
the offended party P10,000.00 for
moral damages and P5,000.00 for attorney’s fees and the cost of the suit.”

It
appreciated in favor of the petitioner the privileged mitigating circumstance
of minority considering that he was born on 13 August 1963,^[3] and by reason thereof, it lowered the
penalty prescribed in Article 335 of the Revised Penal Code, i.e., reclusion
perpetua, by two degrees and
applied the Indeterminate Sentence Law.

Petitioner appealed the
decision to the Court of Appeals, which docketed the case as CA-G.R. CR No.
05592. In his brief,^[4] he sought the reversal thereof on the ground
that the trial court erred in convicting him (a) “on the basis of the
testimony of the offended party despite that [sic] there is no complete
testimony on record of offended party and that cross-examination was not
terminated without the fault of accused-appellant,” and (b) despite the
absence of “evidence to prove his guilt beyond reasonable doubt.” In support of the first, he reiterated and amplified the arguments he had
adduced before the court a
quo, and as to the factual issue, he
asserts that:

“it is highly incredible for
complainant to have been sexually abused when she was with five other
companions three of whom are males while three of them are females. Moreover, why did her companions leave the
place and left her alone? The answer is
because complainant and accused were intimate and have [a] love affair even
before the incident in question. The
allegation regarding the use of force
was merely an afterthought.“^[5]

In the Appellee’s Brief,^[6] the People traversed the petitioner’s
claim that his right to cross-examine
the complainant was denied. Thus:

“On 08 March 1984, after the direct examination of complaining
witness Gloria A. Dalin, counsel for appellant
requested continuance of the cross-examination (TSN, 08 March 1984, p. 25) since he was not ready to cross-examine the witness (Records, p. 147). The cross-examination was therefore reset to 24 April 1984 and 28
May 1985^[7] (Id.).

On 23 April 1984, counsel for appellant filed a Motion for
Postponement of the Hearing (Cross-examination) set for 24 April 1984.

The hearing set for 28 May 1984 was likewise postponed and reset to
09 July 1984 due to power failure (Records, p. 163).

Eventually, on 09 July 1984, appellant’s counsel was able to
cross-examine the complaining witness (Records, p. 172; TSN, 09 July 1984, pp.
1-30).

On 11 July 1984, appellant’s counsel continued his
cross-examination of the complaining witness (TSN, 11 July 1984, pp. 1­-28).

On 20 August 1984, since complaining witness was ‘not yet in the
Philippines, and there are no other witnesses available (Records, p. 183; TSN,
20 Aug. 1984, p. 26) aside from Dr. Dario Gajardo, Medico-Legal Officer of the
PC-Crime Laboratory’, the hearing was reset to 10 October 1984, 22 October
1984, 20 November 1984 and 27 November 1984. (Id.).

x x x

On 28 October 1985, appellant filed a ‘Motion to Strike Out the
Testimony of Gloria Dalin’ on the alleged ground that ‘the cross-examination of
Dalin was not yet terminated’ (Records, pp. 232-233).

On 20 June 1986, the Trial Court denied the foregoing Motion,
holding that ‘the records of this case will readily indicate that Gloria Dalin
has already been sufficiently cross-examined.’ Further, the court added, the
defense had been given full opportunity (actually, the cross-examination of
Dalin by appellant’s counsel was conducted in two court sessions) to finish its
cross-examination but it failed because of the way the same was conducted (Records,
pp. 257-258).

On 01 October 1986, the ‘Motion for Reconsideration’ of appellant
with respect to the foregoing adverse decision was likewise denied (Records, p.
270).

On 08 April 1987 and 12 October 1987, appellant presented evidence
in his behalf and thereafter, rested his case.”^[8]

In its Decision of 25
June 1992, the Court of Appeals affirmed with modification the decision of the
trial court. As modified, the penalty
of imprisonment was increased to an indeterminate sentence of 10 years of prision mayor, as minimum, to 17 years and 4 months of reclusion temporal,
as maximum, while the indemnity
was increased to P50,000.00. It
appreciated in his favor the privileged mitigating circumstance
of minority since he was over 15 and under 18 years of age at the time
he committed the crime and accordingly imposed a penalty one degree lower than
that prescribed for the offense. In
resolving the issues raised in the appeal, it held:

“The accused was not denied his right
to cross-examination, albeit the same was not entirely completed. The records of the case would reveal that
the defense was afforded ample opportunity for cross-examination. After the direct examination of the offended
party on 8 March 1984, the trial court granted the motion of the defense for a
continuance of the hearing on another date to allow it to prepare for a
thorough examination of the offended party’s testimony. On 9 July 1984, the date set for the
continuation of the cross-examination,
the offended party was present and in fact was sufficiently interrogated by the
defense counsel:

x x x

The Supreme Court, in the case of People vs. Gorospe (129 SCRA 223)
has ruled that:

x x x

‘While cross-examination is a right available to the adverse party,
it is not absolute in the sense that a cross-examiner could determine for
himself the length and scope of his cross-examination of a witness. The court has always the discretion to limit
the cross-examination and to consider it terminated if it would serve the ends
of justice.’

But even if in
gratia argumenti, we sustain
appellant’s contention and exclude the testimony of the offended party, there
is still sufficient evidence on record to establish the guilt of the accused
beyond reasonable doubt. As the trial
court emphasized in its decision, the judgment of conviction was not based
solely on the offended party’s testimony.”^[9]

The evidence for the prosecution was carefully summarized by the
trial court in its decision, thus:

“The people’s version of the case is that on February 23, 1979
complainant Gloria Dalin (Dalin, for short), together with five (5) companions,
went to a ‘manggahan’ at Bangkal, Carmona, Cavite to rest and at the same time
pick mangoes. While thus picking
mangoes, accused and a young male companion — about ten (10) years old —
arrived. Frightened by this sudden
appearance, Dalin and her companions scampered away in different
directions. Accused shouted at them to
come back which, Dalin and her companions, due to fear, heeded. And return, they did.

On order of the accused, Dalin and Ruby Laurente were tied together
to a hanging branch of a mango tree with banana fiber locally called
‘saha’. The other members of the group
were also tied with the same fiber but separately.

After a while, accused directed those tied separately to play a
racing game promising the one to reach him first to be set free. Thus, they were untied for this purpose.

While the game was in progress, Dalin and Ruby were busy trying to
free themselves and since the ‘saha’ was fresh and slippery, they
succeeded. Thus freed, they ran towards
the river. Accused who chased them was
able to overtake Dalin. Ruby, on the
other hand, proceeded home and reported the matter to Dalin’s mother.

Accused pulled Dalin by the hair in dragging her to a hut where he forcibly removed
Dalin’s short pants. Thereafter, he
used earthen pots — which broke one after the other due to the force of the
impact — ­to prop up the buttocks of Dalin for easy sexual penetration. Accused succeeded having coition with Dalin
four (4) times. Accused desisted only
upon the entreaties of his young male companion.

Taking advantage of the lull, Dalin rushed home. On the way, she met her mother who was
already looking for her as a result of the report of Ruby.

Immediately, Dalin and her mother went to a PC Detachment in the
area and reported the rape done to her by the accused. The PC authorities, however, directed them
to proceed instead to the police station of Carmona, Cavite which they
did. The necessary investigation was
done therein. Thereafter, Dalin was
brought to the PC Crime Laboratory at Camp Crame for medical examination. As it was already quite late in the evening,
and there being no physician available at that date and time, the medical
examination was conducted the following day — February 24, 1979 — at about
10:30 in the morning. The doctor, Dr.
Dario Gajardo, who examined Dalin submitted the following findings, to wit:

Findings:

GENERAL AND EXTRAGENITAL:

x x x. The following
injuries are noted:

[Here follows an enumeration of seventeen (17) abrasions and
contusions on different parts of the body, especially the buttocks and the
hands.]

GENITAL:

There is ‘lanugo-type’ of pubic hair, labia majora are full, convex
and coaptated with dark brown, hypertrophied labia minora presenting in
between. On separating the same are
disclosed a fresh, healing laceration at the posterior commissure and vulvar
mucosa and an elastic, fleshy type hymen with a deep, fresh laceration at 6
o’clock position. External vaginal
orifice offers strong resistance to the introduction
of the examining index finger and the virgin-sized vaginal speculum. Vaginal canal is narrow with prominent
rugosities. Cervix is normal in size,
color and consistency with moderate amount of whitish secretions.

Vaginal and peri–urethral
smears are negative for gram negative diplococci and for spermatozoa.

REMARKS:

Findings are compatible with recent loss of virginity.”^[10]

In his defense, the
appellant contends that he and the private complainant had a love affair even
before the incident in question and were on intimate terms. On 29 February 1979, the private complainant
came to the “manggahan” to play “bahay­-bahayan” with him. He played the role of the “father,” while the private complainant
acted as the “mother.” They
repaired to a nearby hut where they apparently took their roles so seriously
that they engaged in some necking and petting. He, however, strongly denies that he had sexual intercourse with the
private complainant.^[11]

In convicting the
petitioner, the trial court gave full faith and credit to the prosecution’s
version:

“The injuries suffered by Dalin — ­seventeen (17) in all —
belie the claim of voluntariness. On
the contrary, said injuries portrayed a picture of the accused and Dalin
struggling and fighting. Indeed,
according to the doctor, the injuries suffered by Dalin in her forearm and arm
are defense wounds. Meaning, said
wounds were suffered when she put up a fight.

Dalin’s hymen was lacerated. And the doctor was positive that said laceration was caused by the
insertion of the male organ. It could
not have been due to the insertion of a finger.

Differently stated, the evidence of the prosecution established
beyond any reasonable doubt that the accused succeeded in having carnal
knowledge of Dalin by force.

Not only this. The flight
of the accused to [the] Bicol Region after commission of the crime reveals his
guilt.”^[12]

In this petition for
review on certiorari, the petitioner alleges that the Court of Appeals had no
“jurisdiction to decide and affirm [his] conviction on the basis of
the direct examination of Gloria Dalin alone without terminating the
cross-examination due to the [sic] Gloria Dalin,” and that in affirming
with modification the trial court’s decision, the Court of Appeals “has
departed from the accepted and usual course of judicial proceedings when it overlooked facts of substantial consequences
which establish the innocence of petitioner from the offense charged.”

In the Comment^[13] filed on 27 July 1993 by the Office of the
Solicitor General, the public respondents asseverate that the petitioner was
able to exhaustively cross-examine the complaining witness on 09 July 1984 and
11 July 1984, the transcripts of stenographic notes of which consist of a total
of 58 pages,^[14]
which cross-examination the trial court found sufficient; they assert that the
Court of Appeals did not err in affirming with modification the judgment of
conviction.

The petitioner filed his
Reply to the Comment on 14 October 1993.^[15]

After deliberating on the
allegations, issues, and arguments raised by the parties, we find the
challenged decision to be unflawed by any reversible error. Perforce, the petition must be denied.

We agree with the
respondents and the trial court that the petitioner was not denied the right to
cross-examine the offended party. He was given ample and sufficient time to do so. His counsel, Atty. Loyola, could have
conducted the cross-examination on 8 March 1984 immediately after the
termination of the direct examination but did not allegedly because he was not
ready. Counsel then spent two court
sessions (9 July and 11 July 1984) cross-examining the private complainant. On 9 July 1984, Atty. Loyola cross-examined
her for one hour, and when he was asked by the court if he was through with the
witness, he replied: “I think, I need one more hearing.“^[16] On 11 July 1984, Atty. Loyola
continued the cross-examination,^[17]
which was later stopped because the private complainant became indisposed. Nevertheless, although the prosecution had
announced that it was ready for the continuation of the cross-examination on
the following day, Atty. Loyola told the court that he would be at the
Sandiganbayan and suggested that the continuation be had on 20 August
1984. When the prosecuting fiscal
informed Atty. Loyola that the offended party would leave the country and might
not be able to return to the Philippines, the following exchange transpired:

“Atty. Loyola -?

According to the
witness, she will be returning. Because
she cannot answer, what will happen to the witness if we force her to testify?
We do not want to force her.

Fiscal Gervacio —

She is available
tomorrow.

Atty. Loyola -?

I will not be available
tomorrow. I will not take advantage of
this. If she is not around on the 20th
we will proceed with another witness.”^[18]

This clearly shows that Atty. Loyola was fully aware that the
private complainant was scheduled to leave the Philippines, and that if she
should be unavailable for the continuation of the cross-examination, he was
willing to forego further cross-examination
and present another witness. Even if
this were farthest from his mind, we are further convinced that, knowing of the
expected departure of the private complainant, Atty. Loyola wanted a scenario wherein the private
complainant either would be unable to testify or could no longer be
cross-examined — in which case he would move that her testimony be stricken
out from the record. This is easily
borne out by the counsel’s dilatory tactics — he neither cross-examined her on 8 March 1984 nor agreed that the
cross-examination be continued on 12 July 1984. He also deliberately dragged out his cross-examination on 9 July
and 11 July 1984.

Fortunately, the trial court
saw through this scheme; thus, in its 20 June 1986 Order^[19] denying the petitioner’s motion to strike out the testimony of the private
complainant, it stated:

“The records of this case will readily indicate that Gloria
Dalin [the private complainant] has already been sufficiently
cross-examined. Further, the defense
had been given full opportunity to finish its cross-examination but it failed
because of the way the same was conducted.”

Our examination and evaluation of the transcripts of the
stenographic notes of the proceedings of 9 July and 11 July 1984 support this
conclusion of the trial court.

It should also be noted that the petitioner took the witness
stand. His direct testimony
corroborated the testimony of the private complainant on the incidents before
the rape. He admitted that he kissed the private complainant and touched her breast
but denied her allegations in the statement which she executed before Judge
Arvizu concerning the rape.^[20] Wittingly or unwittingly, he thus rebutted
the testimony of the private complainant, thereby rendering moot, by waiver,
his objection thereto.

Howsoever viewed, the
testimony of the private complainant must stand. The petitioner had not only been given sufficient opportunity to
finish the cross-examination of the private complainant, by his conduct he has,
as well, waived his right to further cross-examine her. His constitutional right to meet the witness
face to face^[21] was not impaired.

In United
States vs. Anastasio,^[22] this Court held that “the right of confrontation
thus guaranteed and secured to the accused is a personal privilege” which
can be waived. We stated the purpose of
confrontation thus:

“The chief purpose of confrontation is to secure the
opportunity for cross-examination; this has been repeatedly pointed out in
judicial opinion, so that if the opportunity of cross-examination has been
secured the function and test of confrontation has also been accomplished, the
confrontation being merely the dramatic preliminary to cross-examination. The second and minor purpose is that the
tribunal may have before it the deportment and appearance of the witness while
testifying. But the latter purpose is
so much a subordinate and incidental one that no vital importance is attached
to it; consequently, if it can not be had it is dispensed with, provided the
chief purpose, cross-examination, has been attained. (Greenleaf on Evidence, vol. 1, par. 163).”^[23]

In People vs. de la Cruz,^[24] we
held:

“The fact that the cross-examination of the complainant was
not formally terminated is not an irregularity that would justify a new
trial. The right to confront the
witnesses may be waived by the accused expressly or by implication. (U.S. vs. Anastasio, 6 Phil. 413; 4 Moran’s
Comments on the Rules of Court, 1970 Ed., p. 201-2).”

We reiterated this rule
in Savory Luncheonette vs.
Lakas ng Manggagawang Pilipino,^[25]
People vs. Seneris,^[26]
People vs. Gorospe,^[27] De
la Paz vs. Intermediate Appellate Court,^[28] Fulgado
vs. Court of Appeals,^[29] and People vs. Carcedo.^[30]

In Savory
Luncheonette, we said:

“The right of a party to confront and cross-examine opposing
witnesses in a judicial litigation, be it criminal or civil in nature, or in
proceedings before administrative tribunals with quasi-judicial powers, is a
fundamental right which is part of due process. However, the right is a personal one which may be waived
expressly or impliedly by conduct amounting to a renunciation of the right of
cross-examination. Thus, where a party
has had the opportunity to cross-examine a witness but failed to avail himself
of it, he necessarily forfeits the right to cross-examine and the testimony
given on direct examination of the witness will be received or allowed to remain in the record.

The conduct of a party which may be construed as an implied waiver of
the right to cross-examine may take various forms. But the common basic principle underlying the application of the
rule on implied waiver is that the party was given the opportunity to confront
and cross-examine an opposing witness but failed to take advantage of it for
reasons attributable to himself alone.“^[31]

In fine, as we stated in Fulgado:

“The principle requiring a testing of testimonial statements
by cross-examination has always been understood as requiring, not necessarily
an actual cross-examination, but merely an opportunity to
exercise the right to cross-examine if desired.”^[32]

We also agree with the
Court of Appeals that even if the testimony of the private complainant were to
be stricken out, there is enough evidence on record to prove beyond reasonable
doubt that the petitioner committed the crime of rape. For one, there is the testimony of Ruby
Laurente. She testified that she and
the private complainant were tied by the accused. The accused then told her that if she acceded to his desire to
rape her, she would be freed. She
however managed to escape and forthwith went to Maria Paz Dalin, the mother of
the private complainant, and told her what happened. Then the two of them, together with Perfecta Calex (the then
Vice-Mayor of Carmona) and other persons, searched for the private complainant
whom they eventually found near a river. The private complainant, who was crying, told them that she had been
ravished by the petitioner. Ruby
testified thus:

“ATTY. GONZALES:

Q    And
what was she doing when you saw her?

Witness:

A   She was crying, sir.

Q  Do
you know why she was crying?

A   No, sir.

Q  What did she say, if any, when you found her?

A   She told me that she was raped by Efren
Anciro.

Q  To whom did she tell that?

A   To us and to her mother.

Q  And when that information was disclosed by
Gloria Dalin, what did you and the rest of your companions do, if any?

Witness:

A   We went home and we went to the Municipality
of Carmona and reported the incident.

Q  To whom did you report the incident?

A   To Rolando Melo, sir.

Q  Who is that Rolando Melo?

A   Station Commander, sir, of Carmona, Cavite.

Q  Was there any investigation conducted by that
Station Commander regarding the incident?

A   Yes, sir.“^[33]

For another, there are the testimonies of the Station Commander,
corroborating the fact of the immediate reporting of the incident and the
investigation he conducted, and of Dr. Gajardo whose medical findings support
the finding of rape.

The statement of the private complainant to Ruby Laurente that she
was raped by the petitioner, which was not objected to by counsel for the
petitioner, is part of the res gestae and is admissible under Section 42, Rule 130 of the
Revised Rules of Court. The requisites for the admission of evidence as part of the res gestae are present, viz.: (1) the principal act or the res gestae — which is the rape — was a startling
occurrence, (2) the declaration by the complainant that she was raped by the
accused was made before she had the time to contrive or devise, and (3) the
statement referred to the occurrence in question and its immediately attending circumstances.^[34]

It is settled that when a
woman says that she has been raped, she says, in effect, that all that is
necessary to constitute the commission of this crime has been committed.^[35] Also, in the instant case, the complainant
immediately reported the incident and voluntarily submitted herself to an
investigation by the police authorities and an examination of her private parts
by the medico-legal officer. It is
difficult to believe that she would tell a story of defloration, allow the
examination of her private parts, and thereafter subject herself to the
rigors and embarrassment of a public trial if she were not raped.^[36]

Finally, there is the unrebutted finding of the trial court that the petitioner fled to
the Bicol Region soon after the incident. Flight evidences guilt and a guilty
conscience; it strongly indicates a guilty mind or betrays the existence of a
guilty conscience.^[37]

Like the trial court and the Court of Appeals, we are convinced
that the guilt of the petitioner
for the crime charged was proved beyond reasonable doubt.

The modifications made by the Court of Appeals are correct. Since the petitioner was a minor above fifteen but less than eighteen years of age at
the time he committed the crime, the penalty to be imposed upon him shall be
one degree lower than reclusion perpetua, the penalty prescribed by Article
335 of the Revised Penal Code. The
trial court would have been correct if the petitioner were less than fifteen
but above nine years of age at the time he committed the crime and had acted
with discernment, in which case he would not be exempt from criminal liability
but would be meted a penalty at least two degrees lower than that prescribed
for the offense.^[38]
The increase of the indemnity to P50,000.00 is in accordance with the current
policy of the Court.

WHEREFORE, no reversible error having been committed by the respondent Court of Appeals, the instant petition is DENIED and the decision of
said Court of 25 June 1992 in CA-G.R. CR No. 05592 is
hereby AFFIRMED.

Costs against the petitioner.

SO ORDERED.

Cruz, (Chairman), Bellosillo, and
Quiason, JJ., concur.

---

^[1]
Original Records (OR), 132.

^[2]
OR, 339-343 Annex “A” of Petition; Rollo, 60-66. Per Judge Roy S. del Rosario.

^[3]
Exhibits “1” and “2”; OR, 309-310.

^[4]
Annex “C” of Petition; Rollo, 40-59.

^[5]
Rollo, 52.

^[6]
Annex “D” of Petition; Id., 67-108.

^[7]
Should be 1984.

^[8]
Rollo, 71-73.

^[9]
Rollo, 29-31.

^[10]
Rollo, 60-64.

^[11]
Rollo, 64.

^[12]
Id., 64-65.

^[13]
Rollo, 143-169.

^[14]
Id., 156.

^[15]
Id., 178-184.

^[16]
TSN, 9 July 1984, 29.

^[17]
TSN, 11 July 1984, 2-24.

^[18]
Id., 25-26.

^[19]
OR, 257-258.

^[20]
TSN, 8 April 1987, 3-10.

^[21]
Section 14(2), Article IlI, 1987 Constitution.

^[22]
6 Phil. 413 [1906].

^[23]
Id. at 416.

^[24]
56 SCRA 84, 92 [1974].

^[25]
62 SCRA 258 [1975].

^[26]
99 SCRA 92 [1980].

^[27]
129 SCRA 233 [1984].

^[28]
154 SCRA 65 [1987].

^[29]
182 SCRA 81 [1990].

^[30]
198 SCRA 503 [1991].

^[31]
Supra, footnote 25, at 263-265.

^[32]
Supra, footnote 29, at 88.

^[33]
TSN, 10 October 1984, 22-24.

^[34]
People vs. Sanchez, 213 SCRA 70 [1992].

^[35]
U.S. vs. Ramos, 1 Phil. 81 [1901]; People vs. Rosell, 181 SCRA
679 [1990]; People vs. Barcelona, 191 SCRA 100 [1990].

^[36]
People vs. Patilan, 197 SCRA 354 [1991].

^[37]
People vs. Garcia, 209 SCRA 164 [1992]; People vs. Martinado, 214
SCRA 712 [1992].

^[38]
Article 68, Revised Penal Code.