THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PONCIANO ROQUE, ACCUSED-APPELLANT.

Ponciano Roque appealed from the amended decision of Judge Emilio
V. Salas of the Court of First Instance of Rizal, Pasig Branch I, convicting
him of rape and sentencing him to an indeterminate penalty ranging from twelve
years and one day of reclusion temporal to reclusion perpetua and to pay an indemnity of ten thousand pesos
to the victim, Ligaya Alvarez (Criminal Case No. 24106).

Roque withdrew his appeal in his manifestation of Novem­ber 23, 1980.  This Court denied the withdrawal because the
obviously erroneous penalty imposed by Judge Salas can be corrected only by
resolving Roque’s appeal.  (See
resolution of December 17, 1980, p. 66, Rollo.)

The evidence of the prosecution shows that at about nine o’clock
in the morning of October 13, 1976, while Ligaya Alvarez, twelve years old
(born on December 7, 1963 and finished Grade three), was washing clothes in a
creek in Sitio Tabak, Barrio San Rafael, Montalban, Rizal, Ponciano Roque, who
was separated from his wife and was Ligaya’s neighbor, approached her, invited
her to go to a certain place and asked her
whether she loved him.

When she refused to go with Roque, he held her left arm, pulled
her to a standing position, and, while she resisted by boxing him on the
shoulder, dragged her along a distance of about fifteen meters to a place
called Tibag and at the same time kissed her, covered her mouth and told her
that he loved her.

Roque boxed Ligaya two times on the left jaw.  She fell on the grass.  He removed her panty and placed himself on
top of her.  She lost consciousness.  Roque had sexual intercourse with her.  When she regained consciousness, she felt
weak and weary (nanghihina at nanglalambot).  She asked him why he ravished her. 
He did not make any comment.

Roque warned Ligaya that if she squealed, he would cut her
neck.  Because of fright, Ligaya did not
inform her parents immediately of what Roque had done to her.  She divulged the outrage when her father
inquired from her why she was “matamlay” or without pep.

Her parents reported the incident to the police.  Doctor Dario Gajardo, a medico-legal officer
of the Constabulary crime laboratory, examined Ligaya four days after the
incident and found that she had healed
abrasions on her left arm; that she
had a gaping labia majora and a hypertrophied labia minora, which on being
separated, disclosed “deep, healed lacerations” on her hymen at the
three, six and nine o’clock positions.

Ligaya’s narrow vaginal canal had “slightly shallowed
rugosities”.  Her vaginal and
peri-urethral smears were negative for diplococci and spermatozoa.  The doctor conc­luded that Ligaya was no
longer a virgin.  He remarked that his
findings were compatible with the fact that she sustained injuries three to
five days before the medical examination (Exh.
B).

Ligaya filed with the trial court a complaint for rape dated
October 5, 1977.  It was sworn to before
the fiscal who conducted the preliminary investigation.

In her affidavit before the municipal mayor dated Octo­ber 17,
1976, she recounted that the rape was committed in this manner:

“Samantalang ako po noon ay naglalaba sa sapa na malapit sa
aming bahay, ay akin na lamang na napansin na si Ponciano Roque ay lumapit sa
akin at ako po ay kanyang niyaya na hindi ko po alam kung saan at ng ako po ay
tumanggi ay ako po ay kanyang hinawakan sa aking kaliwang baraso at ako po ay
binatak niya,
pinilit, pinuwersa na madala doon sa tibag noong karsada na maraming talahib.

“At ng nahandoon na po kami ay ako po ay kanyang pinilit na
ihiga sa talahiban at ng ako po ay maihiga niya, ay ako po ay kanyang
pinatungan at pagkatapos po ay ako po ay kanyang pinaghahalikan sa pisngi at
labi at iyon pong aking dalawang susu ay kanyang nilamas at pagkatapos po noon
ay naramdaman ko po na lamang na iyong pong aking salawal ay kanyang binaltak
hanggang sa maalis niya
at pagkatapos po ay aking napuna na iyong kanyang short na suut ay ibinaba niya
iyong zeeper at iyong kan­yang are (utin) ay kanyang inilabas at pinilit na
maipasok niya sa aking are (puki).” 
(Exh. A).

Ligaya denied that she had been having an illicit sexual
relationship with Ponciano for a long time. 
She said:  “Hindi po totoo
iyon at wala po kaming relasyon ni Ponciano Roque at noon po lamang niya ginawa
sa akin iyon na ako ay kanyang asawahin.” (Exh. A).

At the trial, Roque, 29, married with three children, testified
that since April, 1976 (about six months before the incident) he had sexual
intercourse with Ligaya about fifty times with her consent.

After their sexual intercourse on October 13, 1976, they
allegedly agreed to live together and to tell her father of their love for each
other.  Roque, accompanied by his father,
sister-in-law, brother-in-law, conferred with Ligaya’s father and asked for her
hand (pamanhikan).  Bienvenido
Alvarez, Ligaya’s father, told them to come back on Saturday because his wife
was not in the house.

Roque said that he was not able to return to Ligaya’ s house on
Saturday because his father was ill.  The
next day he learned that he had been accused of rape.

Jose Roque, the father of the accused, and alleged kumpadre
of Ligaya’ father, testified that one Sunday in Octo­ber, 1976, he talked with
Bienvenido Alvarez and they allegedly agreed that the accused and Ligaya could
live together as hus­band and wife and that, after the lapse of a few days,
they could get married.

The trial court regarded as improbable the version of the accused
that he and Ligaya were lovers.  It
reasoned out that if they had been having frequent sexual intercourse, then
they would have just lived together without bothering to secure the consent of
Ligaya’s parents since the accused should know that he could not possibly marry
Ligaya because he was already married.

The condition of Ligaya’s genital organ belied the claim of the
accused that he had frequent sexual congress with Ligaya.  There was an indication of resistance when
the doctor inserted his finger in her vaginal canal.

The trial court further observed that Ligaya’ s act of charging
the accused with rape and her having undergone the trouble and shame of a
public trial signified that she never consented to have carnal intercourse with
the accused.

The accused contends in this appeal that the trial court made
erroneous findings and conclusions, that the prosecution’s evidence shows that
the complainant girl had voluntary sexual intercourse with the accused and that
his guilt was not proven beyond reasonable doubt.

Appellant’s counsel meticulously refuted the trial court’s
remarks on the improbability of
his version and cited eight instances wherein Ligaya committed prevarications
and incon­sistencies or contradictions.

All those contentions were adequately answered in the Solicitor
General’s brief.  It should be noted that
the alleged rape was perpetrated when the complaining girl was twelve years old
and that she testified more than eighteen months after the incident.  She was rigorously grilled in the course of an intensive and lengthy cross-examination
in three sessions.

It was inevitable that there would be discrepancies in her
testimony, especially considering her immaturity, inexperience and low
educational attainment.  Those
discrepancies are not sufficient to cast reasonable doubt on the guilt of the
accused.

Sexual intercourse with a twelve-year-old girl is not far removed from voluntary carnal
intercourse with an eleven­-year-old girl which is regarded as statutory rape.

Judge Salas erred in imposing the indeterminate sentence of
twelve years and one day of reclusion temporal to reclusion perpetua.  The
indeterminate sentence covers only divisible penalties and does not include an
indivisible penalty.

The trial court’s original sentence of life imprisonment is
correct.  It should be designated as reclusion
perpetua.  That is the penalty
under article 335 of the Revised Penal Code, as amended, for simple rape, the
crime committed in this case.

WHEREFORE, the judgment of conviction is affirmed but the
penalty should be modified.  The accused
is hereby sentenced to reclusion perpetua.  The indemnity of ten thousand pesos is
affirmed.  Costs de oficio.

SO ORDERED.

Barredo, (Chairman), Fernandez, Abad Santos, and De Castro, JJ., concur.

Fernandez, J., concur and
designate to sit in the Second Division.

Concepcion, Jr., on leave.