THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SAMSON SAMILLANO, DEFENDANT-APPELLANT.

This is an appeal from the decision of the Court of First
Instance of Antique Branch II in Criminal Case No. 2275-N entitled People of
the Philippines v. Samson Samillano. The dispositive portion of the decision reads as follows:

“IN THE LIGHT OF ALL THE FOREGOING, the Court hereby renders
judgment finding the accused SAMSON SAMILLANO guilty beyond reasonable doubt of
having committed the offense of RAPE punishable under the provisions of
paragraph 3 of Article 335 of the Revised Penal Code and, there being neither
aggravating nor mitigating circumstances to off-set one or the other, hereby
sentences the accused Samson Samillano to a penalty of RECLUSION PERPETUA or
LIFE IMPRISONMENT; with costs.

SO ORDERED.” (Rollo, p. 13)

The prosecution’s theory is summarized in the appellee’s brief,
to wit:

“At about 9:00 in the morning of May 16, 1981, Elizabeth
Ungsod, an 11-year old girl and grade V pupil at the Zaragoza Elementary
School, was in the brook in Barangay Zaragoza, Bugasong, Antique, together with
her mother. Sometime thereafter, she
went home ahead of her mother who continued washing clothes. Along the way, appellant, with a bolo in his
possession, appeared. He held her and
brought her to a dry ditch where he took off her panties. After taking off his short pants, he made
her lie down. She struggled to free
herself but failed. Also, she tried to
shout but he covered her mouth. He then
placed himself on top of her and inserted his penis inside her vagina. She felt some pain and told him so. It was then that Elizabeth’s elder
half-brother, Ruben Ungsod arrived. Appellant
stood up and ran away. Ruben chased him
but was not able to overtake him. When
Elizabeth and Ruben went home, the latter told their father what happened. On the same day, she was brought to the
Rural Health Physician, Dr. Rodolfo Tabotabo, who conducted a medical
examination. He found the presence of
seminal fluid at the vaginal fornices, newly healed lacerations inside the
vagina positioned at 3:00 o’clock and 9:00 o’clock and erythematous swelling of
the vaginal opening. (tsn., Feb. 2,
1982, pp. 3-9, 15-18; Oct. 20, 1981, pp. 2-5; July 19, 1982, pp. 2­-5, 8-10;
Exhs. “A”, “C”, “D”, “E”).”
(Appellee’s Brief, pp. 2-3)

An information was then filed by the Assistant Provincial Fiscal
charging Samson Samillano with the crime of rape committed as follows:

“That on or about the 16th day of May, 1981, in the
municipality of Bugasong, province of Antique, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the above-named accused with
lewd designs and by means of force, violence and intimidation, did, then and
there wilfully, unlawfully and feloniously have carnal knowledge of Elizabeth
Ungsod, a girl eleven (11) years of age against the latter’s will.

“Contrary to the provisions of Article 335 of the Revised
Penal Code.” (Rollo, p. 4)

The accused-appellant, on the other hand, denied the charges
against him and pointed to Ruben Ungsod, the victim’s half-brother, as the
person who had sexual intercourse with the victim on the alleged date. According to him, he was bringing his cow to
the brook when he saw Ruben and Elizabeth having sexual intercourse under the
bamboo clumps. Thereafter, he
immediately went to Elizabeth’s house to tell her father but the latter was not
home. The accused-appellant adds that
he had seen Ruben and Elizabeth engaging in sexual intercourse on two other
occasions. He asserts that he is merely
being made a scapegoat by Elizabeth’s parents to avoid embarrassment in the
barrio inasmuch as Ruben is Elizabeth’s half-brother.

The lower court gave credence to the prosecution’s theory and
rendered the herein questioned decision. Hence, the present appeal.

The accused-appellant raises the following assignment of errors:

I

THE COURT A QUO GRAVELY ERRED IN GIVING GREATER WEIGHT TO THE TESTIMONY OF
ELIZABETH UNGSOD.

II

THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED OF THE CRIME OF RAPE.
(Rollo, p. 42)

It must be noted that the appellant is charged with statutory
rape and the gravamen of the said offense as provided under paragraph 3,
Article 335 of the Revised Penal Code is the carnal knowledge of a woman below
twelve years old. (People v. Alegado,
G.R. Nos. 93030-­31, August 21, 1991; People v. Puedan, 196 SCRA 388 [1991];
People v. Mangalino, 182 SCRA 329 [1990])

In the case at bar, there is no question as to the victim being
under twelve years old (exactly 11 years 6 months and 8 days) at the time of
the incident. In fact, the appellant,
in his brief, did not question the lower court’s findings as to the age of the
victim although the records show that the defense, during the examination of
the witnesses in the lower court, tried to question the probative value of the
birth certificate for having been obtained only two days after the complained
incident. In any case, even if the
birth certificate is questioned herein, this Court will rule in the same manner
as the lower court for even if the birth certificate is to be disregarded, the
age of the victim has been established by other admissible evidence such as the public school records, and the
testimonies of the victim herself and her father.

In People v. Alegado, supra, it has been held that
under Sections 39 and 40 of the Revised Rules on Evidence, the reputation or
tradition existing in a family previous
to the controversy in respect to the pedigree of any of its members, may be
received in evidence if the witness testifying thereon be also a member of the
family, either by consanguinity or affinity. The word pedigree includes relationship, family genealogy, birth,
marriage, death, the dates when, the places where these facts occurred and the
names of the relatives. Hence, the
testimonies of the victim and her father, standing alone, could prove the
victim’s age.

The age of the victim having been settled, the next question,
then, to be resolved is whether the appellant had carnal knowledge of the
victim.

On this point, the prosecution relies solely on the testimony of
Elizabeth while the appellant relies on his own. The Court’s task, then, is to determine which of the conflicting
versions is credible.

The lower court found the prosecution’s version more
credible. After a very careful
consideration of the records, this Court is of the considered opinion that the
lower court committed no reversible error in making the aforementioned
findings. It is a well-settled
principle that the findings of facts of lower courts are accorded utmost
respect in the absence of a showing of arbitrariness considering that they had
the opportunity to observe the demeanor and deportment of the witnesses. (People v. Raptus, 198 SCRA 425 [1991];
People v. Calixtro, 193 SCRA 303 [1991]; People v. Rafanan, 182 SCRA 811
[1990])

The appellant stresses the fact that the prosecution failed to
present Ruben Ungsod even if he was an eyewitness to the crime. He was not even presented to refute the
appellant’s claim that it was he who was with Elizabeth on the date in
question. According to the appellant,
the non-presentation of Ruben is fatal to the prosecution’s case as it gives
rise to the presumption that if presented, his testimony would be adverse to
the prosecution.

It has, time and again, been held that the non-presentation of
certain witnesses by the prosecution is not a sufficiently plausible defense
(People v. Dela Cruz, 184 SCRA 461 [1990]) and the matter of whom to present as
witness by the prosecution is addressed to the sound discretion of the fiscal
or the prosecution handling the case (People v. Fernandez, 186 SCRA 830 [1990];
People v. Nabunat, 182 SCRA 52 [1990]; People v. Marilao, 177 SCRA 271 [1987];
People v. Campana, 124 SCRA 271 [1983]). There should, thus, be no unfavorable inferences to be made from the
failure of the prosecution to present Ruben. Moreover, if the appellant believes that Ruben’s testimony would bolster
his theory, then it is the defense who should have presented Ruben. The coercive processes of the court were at
the appellant’s disposal if Ruben refused to testify.

It is, likewise, erroneous for the appellant to require that
Ruben refute the imputations of the appellant. It is worthy to emphasize that Ruben is not the accused in the present
case. What the prosecution has only to
establish is that the accused perpetrated the crime and not that some other
person did not commit the same. The
lower court found the victim’s lone testimony sufficient to establish the
appellant’s culpability. This Court
deems it likewise. For as between the
bare denials of the accused and the positive identification made by the victim,
the latter must prevail (People v. Camarao, 188 SCRA 671 [1990]; People v.
Paco, 170 SCRA 681 [1989]; People v. Khan, 161 SCRA 406 [1988]).

The appellant, next, capitalizes on the findings of the rural
health physician who conducted the physical examination upon the person of the
victim which revealed the possibility that the victim could have engaged in
sexual intercourse on previous occasions. It is claimed that the findings cast unsavory implications and gives
credence to the appellant’s assertions that Ruben and Elizabeth have an illicit
relationship.

During the examination of Elizabeth Ungsod on the witness stand,
she strongly denied having had any sexual relations with her half-brother. She even declared that it was also the
accused who had sexual intercourse with her on three previous occasions (pp.
10-11, TSN, February 2, 1982)

For the determination of
the appellant’s culpability in the present case, it would be unnecessary to
delve into the past sexual relations of the victim for the fact that the victim
had several sexual liaisons will not rule out the crime of rape (People v.
Hortillano, 177 SCRA 729 [1989]; even prostitutes may be raped (People v. Pido,
G.R. No. 92427, August 2, 1991 citing People v. Tagle, 176 SCRA 809 [1989])

At any rate, the appellant failed to produce any iota of evidence
to support his representations as to the existence of an incestuous
relationship between Ruben and Elizabeth. If it is true that he is merely being made a scapegoat by the victim’s
parents, then, a number of barrio folks who must have become aware of the said
relationship could have been presented to substantiate the appellant’s
claims. We also quote with approval the
Solicitor General’s arguments in the People’s brief regarding this matter:

x x x                   x
x x                             x x x

“b) Prior to the date in question, appellant had
allegedly seen Elizabeth and Ruben twice in sexual congress, yet he did not
bother to report these two incidents to her father. And on May 16, 1981 when he claimed to have seen the two again
having sexual intercourse, he again failed to report the same to her father on
the pretext that the latter was not home. Considering the seriousness of the matter, he should have waited for
Elizabeth’s father to come home.

“c) Appellant’s defense is
belied by the fact that Ruben, together with Elizabeth’s mother, accompanied
Elizabeth to Dr. Tabotabo for examination. If Ruben was the one responsible, he would not have sought confirmation
of what he had done.

“d) There is no showing
that aside from appellant, some other person had seen the alleged sexual
liaison between Ruben and Elizabeth. Hence, appellant’s claim that said affair
had caused public embarrassment to Elizabeth’s family has no basis.

“e) Appellant could
not explain why he should be chosen as alleged scapegoat for Ruben’s sin. He admitted that he was in good terms with
Elizabeth’s family prior to the incident. (TSN., August 20, 1982, p. 12)” (Appellee’s Brief, pp. 4-5)

From all the foregoing, there is no doubt the appellant had
carnal knowledge of Elizabeth, a child under twelve years old, on May 16, 1981.

All the elements of statutory rape having been established, no
other facts, such as the use or
non-use of force by the appellant, need be presented to pin the responsibility
for the crime herein charged upon the appellant. However, although there is apparently no need to resolve the
question of whether or not force was employed, we find it imperative to make a
note of the lower court’s findings regarding this matter.

The lower court ruled that Elizabeth consented to the sexual
intercourse with the following findings:

“It is noteworthy, that Elizabeth never reported to her
parents or to anybody the fact of her three previous sexual intercourse with
the accused Samson Samillano. As to the
4th sexual intercourse she had with the same accused on May 16, 1981, it
was not she, but her
half-brother Ruben Ungsod who after surprising them in the act of sexual
intercourse, reported the incident to her father. Before her father signed the complaint, her mother had to compel
her to execute the affidavit against the accused. And during trial, while going on her direct testimony, Elizabeth
appeared many times to be reluctant whenever she was asked questions tending to
elicit from her a declaration on the use of force by the accused in having sexual intercourse with her. On one such occasion, the Court had to order
the suspension of the proceeding and upon resumption few minutes later, to
order the resetting of the continuation of hearing upon motion by the
prosecuting Fiscal. Likewise, worthy of
note is the fact that the accused Samson Samillano, and the minor Elizabeth
Ungsod are second cousins to each other. All these facts and circumstances, inter-linking with one another and
taken altogether, operate to negate the existence of force or violence in the
sexual intercourse the accused had with Elizabeth on May 16, 1981. On the contrary, they tend to establish
consent on the part of Elizabeth in the commission thereof.” (Rollo, p.
11)

The evidence on record is
not sufficient to establish the victim’s consent. Elizabeth was never asked in court why she had not reported the
previous assaults upon her person. She
was likewise never given an opportunity to explain why she was hesitant to
execute the affidavit against the appellant. Her reluctance before and during trial may be interpreted as the manifest fear of a child of tender years who is being compelled to
divulge things that even a woman of sufficient maturity would be embarrassed to
declare in public.

It would, thus, be seen
that the evidence on the question at hand is incapable of any definite
interpretation. There is, indeed, no
proof tending to establish the use of force. But this does not necessarily mean that there was consent, in the
absence of proof establishing the same.

It is recognized that the consent of a child under twelve years old in rape
cases is always regarded as immaterial for she
may not yet know or fully realize the detestable nature and gravity of the acts
committed upon her person (People v. Raptus, supra) But in the case at bar, the
immateriality of the child’s consent notwithstanding, there is no basis in
attaching a graver stigma by declaring that the victim has consented to the
act.

We penultimately rule that in line with the ruling in People v.
Saldivia, G.R. No. 55346 November 13, 1991, the award of moral damages which
the trial court failed to make is in order, for rape necessarily brings to the
victim mental anguish, fright, serious anxiety, besmirched reputation, moral
shock and social humiliation. We award
to the complainant the sum of P50,000.00 as moral damages.

Finally, we would like to
make note of the penalty imposed by the lower court upon the appellants, to
wit: reclusion perpetua or life imprisonment. This Court is cognizant of the practice of lower courts in equating reclusion
perpetua with life imprisonment. Such
an erroneous practice must be curtailed. It is the oft-repeated rule that in a judgment of conviction for a
felony, the court should specify the appropriate name of the penalty inasmuch
as under the scheme of penalties in the Revised Penal Code, the principal
penalty for a felony has its own specific duration and corresponding accessory
penalties (People v. Aquino, 186 SCRA 851 [1990]). The proper penalty which should have been imposed is
reclusion perpetua. There is no penalty
of life imprisonment in the scheme of penalties under the Revised Penal Code.

WHEREFORE, all the foregoing premises considered, the
present APPEAL is hereby DISMISSED. The
decision appealed from is AFFIRMED with the modifications that there be an
award of moral damages amounting to P50,000.00 and that the penalty to be
imposed is reclusion perpetua.

SO ORDERED.

Feliciano, Bidin, Davide, Jr., and
Romero, JJ., concur.