PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MURPHY BANZALES Y ILAGAN AND JOSEPHINE DIALOLA, ACCUSED-APPELLANTS.

Murphy Banzales and Josephine
Dialola appeal from the judgment of the then Court of
First Instance of Quezon, Lucena City, Branch 2 in Criminal Case No. 3622^[1], convicting them of rape and sentencing
them to an indeterminate penalty ranging from reclusion temporal as
minimum to reclusion perpetua as maximum and to pay an indemnity of
P30,000.00 to the victim, Rosalina Ricafort [Records, p. 108].

The evidence for the prosecution shows that at about three o’clock
in the afternoon of June 17, 1982, Rosalina Ricafort,
then a seventeen-year-old cosmetology student residing at Riverside Subdivision,
Lucena City, visited her elder half-sister Nida [Leonida Obenza] at the resthouse of the
family-owned resort in the university site [Luzonian
University].  They exchanged pleasantries and munched coconut
meat.  After an hour or at around four o’clock in the afternoon, Rosalina decided to leave
for home.  She took the shortcut route leading to the “burol“, an uphill road which is the usual stopping
place for jeepneys plying the
university area.  The shortcut is a narrow footpath in the middle
of tall cogon grasses, thick underbrushes, trees and
bamboo groves [Exh. B; TSN, 39-43,
92, 177].

As Rosalina was nearing a turning area, a woman approached her and
requested that they both look for a boy who had died in that area. 
That woman was the accused-appellant Josephine Dialola.  Rosalina hesitated but Dialola quickly assured her that she would be safe with her
since they were both girls.  Rosalina acquiesced.  But
after taking a few steps, Dialola pulled her towards a
thickly forested area, about 10 meters away from the
path, where the other accused-appellant Murphy Banzales emerged from his hiding place and suddenly grabbed
Rosalina from behind.  Then together he and Dialola forcibly laid Rosalina down on a grassy
portion.  While Dialola covered
Rosalina’s mouth with her hands, Banzales pinned the
struggling girl down with his thighs.  He threatened to kill her if
she shouted [TSN, pp. 44-46, 105, 180].

Rosalina tried to break free and turned her head from side to side
but Banzales boxed her on the stomach, rendering her
unconscious.  When she came to, Banzales
was on top of her, his private organ inserted in her private part. 
She moaned.  Noticing that she was already awake, Dialola covered her mouth again.  To create
noise, Rosalina kicked the ground with her feet.  Banzales gave her a heavy blow on her thighs and stomach and
she fainted for the second time.  When she regained consciousness,
it was almost dark.  She noticed that she was almost naked except
for her bra which was up in her neck and her panties dangling from her right
leg.  Her shirt and pants were missing [TSN, pp. 47-49,
114-120].

Banzales was seated beside her, facing
the path used for leaving the area.  He warned her that he would
kill her parents if she reported the matter to the police.  Then he
left.  There was no sign of the other accused [TSN, pp. 49,
121-122].

Feeling weak and dizzy and clad only in her underwear, Rosalina
trudged back to the resthouse and called out for her
sister Nida.  Noticing a piece of
clothing hanging on a nearby cacao tree belonging to one of their workers, she
reached for it and wrapped it around her body.  When Nida appeared, Rosalina immediately told her that she had
been raped.  Nida returned to the house,
took a blanket and placed it around her distraught sister.  Then
she ran to the diversion road where she hailed a passing jeep belonging to the
National Irrigation Administration and brought Rosalina to the
Quezon
Memorial
Hospital where the latter was
examined by the resident physician at seven
o’clock in the evening of that same day [June 17th]. 
Examination of the victim’s genitalia showed congestion on the anterior
fourchette left and posterior left and hymenal laceration at the 5:00 o’clock position.  The vagina which
admitted one finger with difficulty bore dark blood and traces of sperm
cells.  There was multiple linear abrasion
at the anterior chest [upper torso] which could have been caused by sharp
instruments or fist blows.  The physician also found blood on
Rosalina’s lower cheeks near the lip area.  Her findings were
consistent with the conclusion that coitus with the injured girl was obtained
through force [Exh. A; TSN, pp. 8-14, 49-51,
123-125].

Shortly thereafter, the police arrived and asked Rosalina for a
description of the rapists.  She told them that although she did
not know their names she could recognize them by their faces.  She
described the woman as of medium height with a high-bridge nose and wearing
T-shirt with green stripes, maong pants and a pair of
Adidas shoes.  Rosalina described the man as quite fat, tall with
thick curly hair and a protruding stomach [TSN, pp. 52-54, 110-11, 130].

Guided by that description, the police apprehended Banzales and Dialola, and in the
morning of June 18, 1982
brought them separately before Rosalina in the hospital ward where she was
confined.  In between sobs, she identified them as the man and
woman who had sexually abused her [TSN, pp. 54-57, 145, 155-158].

At three o’clock in the
afternoon of June 18, 1982,
Rosalina was discharged from the hospital.  At about midnight, she and her foster parents were invited
to the police headquarters where she again pinpointed the two accused in the
police lineup as her attackers.  Rosalina also executed a sworn
statement narrating the details of the rape [Exh. B;
TSN, pp. 58-70, 80-81].

A complaint for rape signed by the victim herself and sworn to
before the city fiscal was filed on June 21, 1982 with the Court of First
Instance against Murphy Banzales as principal by
direct participation and Josephine Dialola as
principal by indispensable cooperation [Records, pp. 1-2].  On
arraignment, both accused pleaded not guilty [Records, p. 20]. 
After hearing, they were found guilty as charged but the mitigating
circumstance of voluntary surrender was appreciated in their favor [Records, p.
108].

Accused-appellants Banzales and Dialola, through their counsels de parte, contend that the trial court
erred in not giving credence to their defense of alibi and in holding that
Rosalina’s testimony was sufficient to overcome the presumption of innocence
[Rollo, pp. 170, 240].

Appellant Banzales, high school
graduate, twenty-four years old, married, a public utility jeepney driver and residing in Lucena City, denied the accusation that he had raped
Rosalina.  He testified that on June 17, 1982, between the hours of four and six in the
afternoon, he was out plying his Lucena
City-university site route.  At about four, he was at the
marketplace picking up passengers.  A friend, Philippine
Constabulary Sergeant Charlie Tolopia, boarded his
jeepney.  Upon reaching the university
site, his other passengers alighted, leaving only Tolopia.  He brought Tolopia to his residence at Madrid
Street where they talked for about fifteen minutes
while remaining inside the vehicle.  At 5:20 in the afternoon, Banzales
resumed his driving and picked up passengers bound for the public market. 
Upon reaching the town proper, a tire started to wobble so he brought the
jeep over to his parents’ house at the university site for repairs. 
After ten minutes or around 5:35 p.m., he decided to call it a day,
joined a fellow-jeepney driver named Junior in his
route, and later had drinks with him until 9:30 in the evening in the house of a
certain Aling Delia, also at the university site [TSN,
pp. 417-431].

The next day, June 18,
1982, Banzales drove his jeepney till noon.  Having heard that the police were
looking for a tall man [he was about five-foot-eight] in connection with a rape
that occurred near the resort, he decided to present himself before them to deny
any involvement.  Patrolman Ginauli and
Corporal Lequin brought him to see Rosalina at the
hospital.  He maintained that she remained silent throughout the
confrontation and did not respond when the police asked her if Banzales was the one who had abused her.  Left
with no other alternative, the police released him and he resumed his
driving.  At around midnight, while he was drinking with friends in the house
of Aling Delia, the police picked him up and took him
to the police station where he was pinpointed by Rosalina, once inside the
interrogation room, and again in the police lineup [TSN, pp. 433-441,
445-447].

Josephine Dialola, the other appellant,
twenty years old, single, jeepney conductress and
residing in Red V, Lucena
City, testified that from nine in the
morning until 8:30 in the evening of
June 17, 1982, she was
working as a conductress in the red Tamaraw jeepney driven by Rolando Lopez.  They plied
the same university site route being serviced by Banzales which began at the public market and ended at the
“burol” after circling the university
area.  That day she made around twelve complete trips [TSN, pp.
275, 307, 325].

Reportedly a tomboy, Dialola
was the lone female conductress among the PUJs
operating at the university site.  She worked with Lopez
continuously for six months, except for the two months when she was incarcerated
in the city jail for several robbery cases [Exh. C; TSN, pp. 318-319, 321].  She declared that
she never saw Rosalina before in her life.

There is no doubt in our mind that Rosalina was
raped.  The medical report confirms this.  The
question now remaining is whether appellants Banzales
and Dialola have been definitely identified
by the seventeen-year-old rape victim and whether their respective alibis
are sufficient to exculpate them.

To corroborate his story, Banzales
presented Tolopia as his witness.  Upon
cross-examination, however, it was elicited from Tolopia that he was a long-time acquaintance of Banzales and a comrade-in-arms of his father in the
Philippine Constabulary [TSN, p. 405].  Dialola, for her part, presented Rolando Lopez, her jeepney driver, and Dionisio Dialola, her father, to convince the trial court that
between the hours of four and six in the afternoon of June 17, 1982 she was out plying the university
site route [TSN, pp. 340-346, 236-237].  It is readily apparent
that corroborative testimony as to appellants’ being elsewhere at the tine of
the commission of the offense came from either a relative, a close friend or an
associate which led the lower court to doubt its veracity considering that the
appellants could have easily secured the testimonies of so many drivers,
conductors and passengers using the same route.  But independently
of the suspicion naturally engendered by such biased testimony, this Court is
convinced that the offended party has positively identified the appellants.

To begin with, Rosalina had ample opportunity to recognize and
remember her two attackers.  Prior to the rape, Rosalina used to
see Dialola at the Obar
Ricemill in Red V whenever complainant went there to
have palay milled.  As for Banzales, Rosalina met him once on board a jeep on her way
to the resort about a month before she was criminally assaulted. 
She remembered him because they were sitting opposite each other. 
They had a conversation.  When Rosalina alighted at the
“burol“, the appellant did likewise and
pointed to her a shortcut to the resort.  Rosalina took the
suggested path, the very place where she would be abused a month later. 
After that, she again saw Banzales hanging
around her neighbor’s house which is about twenty meters from the “burol” [TSN, pp. 38-39, 195-196, 210, 468].

When Rosalina was raped, it was broad daylight. 
Dialola covered her mouth but not her
eyes.  She was lying face up when Banzales was astride her.  Though she fainted
twice, there were moments when she was awake and aware of what was being done to
her.

Less than 24 hours later, the police brought the two appellants
separately before her in the hospital ward where she was confined. 
To demonstrate how meticulous the police were in ascertaining the
identity of the offenders, they showed another tomboy to complainant to test the
latter’s recollection.  They also told the appellants to enter the
room twice to ensure that there would be no mistake on Rosalina’s part. 
Afterwards at the police station, the law enforcers once again required
Rosalina to identify Banzales and Dialola in a police lineup.  All throughout,
she remained unwavering [TSN, pp. 54?57, 60-61].

Subsequently, at the witness stand and in a straight-forward
manner, Rosalina narrated how she was ravished and positively affirmed that it
was Dialola who waylaid her towards a forested area
into the waiting arms of Banzales who then succeeded
in abusing her in spite of her resistance.

In the face of such unequivocal identification by the rape victim
whose testimony the trial court had given full credence, as well as the
incontrovertible fact that there was no physical impossibility on appellants’
part to reach the scene of the crime which is but a few minutes
away from their respective routes as public utility jeepney driver and conductress, appellants’ defense of alibi
must necessarily fall and the lower court properly disregarded the same.

The minor inconsistencies in Rosalina’s testimony are to be
expected.  The gruelling
cross?examination of a seventeen-year-old girl, unaccustomed to a public trial,
would inevitably produce contradictions which nevertheless would not destroy her
credibility [People vs. Gozum, G.R. No. 66970, February 28, 1985, 135 SCRA 295; People vs.
Garcia, G.R. No. L-45280-81, June 11, 1981, 105 SCRA 6].

On matters of credibility this Court has accorded the highest
degree of respect for the findings of the trial judge because he had the
opportunity to hear the witnesses testify and observe their demeanor. 
Evidently, in the instant case, he found the complaining witness more
credible.  In line with the rule above-stated, We affirm.

The trial court correctly found Dialola,
a woman, equally culpable as a principal together with Banzales for the crime of rape.  Appellants’
combined actions easily induce the belief that everything had been prearranged
between them in order that Banzales might carry out
his bestial designs upon the victim.  Dialola cooperated in the perpetration of the rape by Banzales by acts without which the crime could not have been
consummated.  She paved the way by luring the unsuspecting victim
into a secluded wooded area, delivering her to Banzales and then covering the girl’s mouth so that she
could not summon for help.  The criminal responsibility of Dialola has been established [People vs. Andal,
G.R. No. L-39763, March 8, 1976,
70 SCRA 30; US vs. Javier, 31 Phil. 235].

However, We find that the lower court
erred in appreciating the attenuating circumstance of voluntary surrender in
appellants’ favor.  In order that voluntary surrender may be taken
into account, “it is necessary that the same be spontaneous in such manner that
it shows the intent of the accused to surrender unconditionally to the
authorities” [People vs. Sakam, 61 Phil. 27, 34; People vs.
Hanasan, G.R. No. L-25989, September 30, 1969, 29 SCRA 534].  The evidence disclosed that
both accused were picked up by the
police several hours after they were definitely identified by Rosalina in the
hospital [TSN, pp. 278, 297, 446-448].  Where the record does not
clearly show that the accused voluntarily surrendered to the authorities, the
doubt cannot be resolved in their favor [People vs. Lopez, 107 Phil.
1039].  The fact that Banzales and Dialola went willingly with the police does not amount to
voluntary surrender [People vs. Dimdiman, 106 Phil. 391].

Likewise, the trial court erroneously applied the Indeterminate
Sentence Law after it improperly lowered the penalty of reclusion
perpetua to reclusion temporal by reason of the extenuating
circumstance of voluntary surrender.  The crime committed in this
case is rape by two or more persons falling under paragraph 3 of Article 335 of
the Revised Penal Code.  It is punished by reclusion
perpetua to death which are two principal indivisible penalties.

Two vital points must be made clear.  Firstly, the
indeterminate sentence covers only divisible penalties and does not include
indivisible penalties [People vs. Asturias, G.R. No. 61126, January 31,
1985, 134 SCRA 405; People vs. Arizola, G.R. No. 59713, March 15, 1982,
112 SCRA 615; People vs. Roque, G.R. No. 53470, June 26, 1981, 105 SCRA
117].  Secondly, in all cases in which the law prescribes a penalty
of two indivisible penalties and there are neither mitigating nor aggravating
circumstances present, as in the case at bar, the proper penalty is the lesser
penalty or reclusion perpetua.  [Revised Penal Code,
Article 63(2); People vs. Lamberte, G.R. No. 65151, July 11, 1986, 142 SCRA 685].

WHEREFORE, the judgment of conviction is affirmed but the
penalty is modified.  Accused-appellants Murphy Banzales and Josephine Dialola are
hereby sentenced to reclusion perpetua and to indemnify the victim,
Rosalina Ricafort, in the amount of P30,000.00.  Costs against
accused-appellants.

SO
ORDERED.

Gutierrez, Jr.,
Paras, Padilla, Bidin, and Cortes, JJ.,
concur.