PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. GIL BIHASA, DEFENDANT-APPELLANT.

This is an appeal from the decision of the Court of First Instance of
Aurora, Ninth District, finding accused-appellant Gil Bihasa guilty
beyond reasonable doubt of the crime of rape and sentencing him to
suffer the penalty of reclusion perpetua, to indemnify the
victim, Marilyn Maliwanag in the sum of P12,000.00, the victim’s father
in the sum of P6,000.00 and the victim’s mother in another sum of
P6,000.00 without subsidiary imprisonment in case of insolvency, with
all the accessory penalties of the law, and to pay the costs.

In a criminal complaint filed by the offended party, appellant Gil
Bihasa was charged with the crime of rape, committed as follows:

“That on or about the 10th day of June, 1981, at about 11:00
o’clock in the evening, in the Municipality of San Luis, Province of
Aurora, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, by means of force, threats and intimidation, to
wit: by threatening to kill the said Marilyn Maliwanag with a knife
locally known as ‘kutsillo’ which he pointed at her neck, did then and
there wilfully, unlawfully and feloniously have sexual intercourse with
her against her will.”

Before trial, appellant furnished bail for his temporary liberty. When arraigned, he entered a plea of not guilty.

The People’s version of the facts is as follows:

“On June 10, 1981 at around 11:00 o’clock in the evening,
complainant Marilyn Maliwanag went to sleep in the room at their one
story house located in Barangay Zarah, San Luis, Aurora. Across the
hallway, opposite her room was another room where her two brothers,
Nixon (11 years old) and June (10 years old) and first cousin Teresita
España (20 years old) were sleeping (pp. 2-3, tsn., Nov. 9, 1981). Her
parents were then in Cabanatuan City (p. 7, ibid).

“At around 1:00 o’clock, the early dawn of June 11, 1981, she was
awakened when she felt somebody lay on top of her. She recognized that
‘somebody’ as the appellant Gil Bihasa. There was a kerosene lamp
opposite her bed (p. 5 .Ibid). Appellant was completely nude and was holding a bladed weapon which was more or less five (5) inches in length (p. 3, ibid).

“When she awakened, complainant realized that her panty was no
longer on and that appellant was pointing the knife at her neck. She
tried to free herself but was not able to. Neither could she make any
outcry because of appellant’s threat that if she did not surrender her
womanhood, appellant would thrust the knife at her. Appellant held the
knife with his right hand and pinned the complainant by the shoulder
with his left hand. He succeeded in inserting his organ into hers but
each time it would slip out because of the struggle put on by the
complainant. Everytime appellant’s organ would slip out, he would again
reinsert the same and this went on for about five (5) times. After
sometime, complainant felt something come out of appellant’s organ (4-5,
ibid).

“After appellant had satisfied his lust, he threatened the
complainant not to reveal to anybody what transpired or something bad
would happen. Appellant put on his pants, slung his T-shirt on his
shoulder, wrapped the knife with a piece of paper and went out of the
house (pp. 5-6, ibid).”

The prosecution presented as witnesses complainant Marilyn Maliwanag,
Dr. Romeo Chua who conducted the medical examination, Teresita España,
and the victim’s father, Jose Maliwanag. Testimony of España as outlined
by the trial court shows that:

“Espana went out to piss and saw the accused, whom she knew
because he is the chairman of the Kabataang Barangay, come from the room
of Marilyn. He passed by her on his way to the sala which was lighted
by a kerosene lamp. He was wearing denim pants with his T-shirt slung
over his shoulder and holding a knife which he was wrapping in a piece
of paper. He hurriedly went out of the house thru the sala and front
door, which, before they went to bed was closed by Nixon Maliwanag but
it could not be locked securely and could be opened from the outside if
he pushed with force. She went to the room of Marilyn and asked what
happened to her. Marilyn did not answer, had no skirt and panties and
was crying and covering her eyes with the back of her right hand. They
did not converse because Marilyn was still shocked with what happened to
her. When Marilyn did not answer she went back to bed.

“On June 11, 1981, Marilyn just stayed in the house because she
was still shocked with what happened to her. In the evening, España
asked Marilyn what happened to her, and the latter confessed to her what
happened.”

The father’s testimony may be summarized as follows: on June 10, 1981,
he was in Cabanatuan City; he returned to Barangay Zarah, San Luis,
Aurora on June 19, 1981; after eating breakfast on said date, his
daughter Marilyn, asked permission and money for enrolment at Mount
Carmel at Baler, Aurora; in the afternoon of the same day, Teresita
España told him that at around one o’clock in the morning of June 11,
1981, she saw Gil Bihasa go out of the room of Marilyn; and upon being
informed of this matter, he went to Ernesto Bihasa, the older brother of
Gil, to inform him of what Gil did to his daughter. (tsn., November 20,
1981, pp. 3-6)

The defense of the appellant is plain alibi. He declared that on the
afternoon of June 10, 1981, as chairman of the Kabataang Barangay, he
attended the pulong-pulong called by Mayor Pimentel to discuss the
coming presidential elections. At about 5:00 o’clock in the afternoon,
after the meeting adjourned, he, together with Amando Morillo and
Florencio Imbestro, proceeded to the house of Armando Bihasa about 30
meters from the barangay hall where they had a drinking spree and drank
San Miguel gin. He stayed there up to about 9:00 o’clock that evening,
then went home where he ate, went to bed, and did not go out anymore.
His house was only around 250 meters from the house of Marilyn. (tsn.,
July 6, 1982, p. 3)

The lower court held that the alibi of the appellant was worthless
because he was positively identified by the victim and as against this
positive identification, he never categorically denied that he had
sexual intercourse with Marilyn by force and intimidation and against
her will but merely implied that the incident did not happen.

In view of the severity of the penalty for the offense of rape,
justified by the “traumatic consequences for the unfortunate victim and
the grievous injury to the peace and good order of the community,” there
is need for extreme care on the part of the judiciary to avoid
injustice being done to the accused. For it is equally true that this is
an offense to which, as is often the case, only two people can testify,
thus requiring the most conscientious effort on the part of the arbiter
to weigh and appraise the conflicting testimony. If a reasonable doubt
exists, the verdict must be one of acquittal (People v. Nazareno, 80
SCRA 484). It must be borne in mind that it is an accusation easy to be
made, hard to prove, but harder to be defended by the accused, though
innocent (People v. Barbo, 56 SCRA 459). The evidence for conviction
must be clear and convincing to overcome the constitutional presumption
of innocence.

The physical examination conducted on July 16, 1981 or more than a month
after the alleged rape, Dr. Romeo T. Chua, Chief of the Aurora Memorial
Hospital, on the victim reveals the following findings:

“x x x Hymen with old lacerations at 3, 5, 7, and 9 o’clock.
Vagina admits one finger with difficulty. Cervex enlarged with plenty of
mucoidal discharge. Uterus seems to be enlarged. Adnexia negative.”
(Tsn., November 11, 1981, p. 31)

On the basis of the above medical findings, there was undoubtedly sexual
intercourse. However, the question arises: was there rape? The victim
claims she was forced by the appellant to have carnal knowledge with him
at knifepoint. The appellant, on the other hand, insists that the
alleged rape never took place and denied having been at the room of the
victim in the evening of June 10, 1981. Instead of meeting head-on the
issue of whether or not he committed the rape, the appellant presented
defense witnesses whose testimonies cast doubt on the honesty and
veracity of the prosecution witnesses.

As earlier stated, the appellant was President of the Federation of
Kabataang Barangays of San Luis, Aurora while the complainant, Marilyn
Maliwanag was the Secretary of the Kabataang Barangay of Zarah, where
the appellant was also Chairman.

Briefly, the testimonies of the defense witnesses may be summed up as follows:

1. On the allegation of the victim that she did not go out of the
house or talk with anybody else except Teresita España on the succeeding
days after the alleged rape took place because of the trauma and shock
she suffered – Rosario Buencamino Villar, executive officer of the
Barangay Brigade in Barangay Zarah testified that on June 12, 1981,
there was a public celebration of the Araw ng Kalayaan (Independence
day); that on said date, she, together with the victim and other
persons, offered flowers at the statue of President Quezon; that after
the offering of flowers, there was a program held at the municipal
building attended by the victim together with other members and officers
of the Barangay Brigade; that the victim was in the company of the
appellant; that after the program, she, together with the victim, served
refreshments at the house of Rogelio Bihasa; and, that the appellant
was also present at the refreshment. (tsn., February 9, 1982, pp. 2-3)
Myrna Buencamino, member of the Kabataang Barangay likewise testified
that on June 14, 1981, there was a Pulong-pulong sa Barangay held at the
municipal building of San Luis; that she accompanied the victim
together with the appellant and others attend the meeting; that the
victim rendered a song during the meeting; that on June 16, 1981, she
together with the victim served refresh­ments to the voting inspectors
for the national elections; and, that she and the victim were together
on a similar occasion on June 19, 1981. (tsn., February 24, 1982, pp.
2-5) Both the testimonies were corroborated by Estelita Liwag Bihasa,
distant relative of the victim, and Amelie Bihasa, a close friend of the
victim. In surrebuttal, Ofelia­Angara-Ulsa, clerk of the office of the
Sangguniang Bayan Secretary testified that she personally took charge of
the preparation of the attendance roll of the Araw ng Kalayaan
celebration; and, that the victim signed the attendance sheet. (Exhs. 6
and 6-A; tsn., September 10, 1982, pp. 8-11) In rebuttal, Marilyn
Maliwanag strongly denied that she was present in any of those
occasions.

2. On the allegation of Teresita España that she was at the house
of the victim on June 10, 1981 – Concepcion de la Torre, mother of
Teresita España testified that on June 1, 1981, she gave birth in
Barangay Dibut, San Luis, Aurora; that Teresita España took care of her
from the 1st of June to the 25th; and, that Barangay Zarah is very far
from Barangay Dibut and one will have to cross the sea in order to go to
Barangay Zarah from Barangay Dibut. (tsn., June 1, 1982, pp. 9-10) In
rebuttal, the prosecution presented Barangay Captain Florencio Daguman
and Celso Friginal, the municipal treasurer. The former testified that
on May 4, 1981, he conducted a census of Barangay Zarah; and, that
Teresita España was listed as a resident of Barangay Zarah. The latter,
on the other hand, testified that no record of the delivery or birth of a
child was made for Consolacion de la Torre. (tsn., August 24, 1982, pp.
2-3; pp. 5-6) Jorge Maliwanag averred that Concepcion de la Torre had
some grudge or ill feelings against him which probably caused de la
Torre to testify against her own daughter Teresita España.

3. On the allegation of Jorge Maliwanag that he was at Cabanatuan
City from June 10 to 19, 1981 – Yolanda Imbestro and Trinidad Reopta,
chairman and member respectively, of the Citizens Election Committee
testified that on June 16, 1981, national election day, Jorge Maliwanag
served as Inspector for the KBL Party in Barangay Zarah. (tsn., January
20, 1982, pp. 2-3; 5-6) Jorge Maliwanag rectified his previous testimony
and admitted that he served as a poll inspector during the June 16
national elections; that he arrived from Cabanatuan City at Barangay
Zarah in the morning of the 16th of June; that he just went to his house
to take a bath and change his clothes and immediately proceeded to the
polling place. (tsn., July 28, 1982, p. 9) Other defense witnesses
testified that they saw Jorge Maliwanag at Barangay Zarah not only on
June 16, 1981 but also on the following day. Jorge Maliwanag, however,
vehemently denied having been in the Barangay on June 17, 1981 and
insisted that he left for Cabanatuan City at around 11:00 o’clock in the
evening of June 16, 1981.

Indeed, the above testimonies of the defense witnesses are collateral in
nature. They do not tackle the main issue which is a question of rape.
Instead, they try to prove the propensity of the prosecution witnesses
to fabricate and exaggerate.

It is well-settled that against the positive identification of the
accused, alibi is unavailing (People v. Terrobias, 103 SCRA 321) and
that as a minimum requirement for the theory of alibi to be accepted,
the accused must also demonstrate that it was physically impossible for
him to be at the scene of the crime (People v. Muñoz, 107 SCRA 313;
People v. Capillas, 108 SCRA 173; People v. Sambangan, 125 SCRA 726).

On the other hand, the prosecution cannot capitalize on the weakness of
the defense theory. It must fully convince the Court beyond reasonable
doubt that the crime alleged to have taken place, which in this case is
the crime of rape, really occurred (People v. Tabayoyong, 104 SCRA 724;
People v. Delmendo, 109 SCRA 350).

As earlier mentioned, the victim disclaimed the testimonies of the
defense witnesses. She denied having attended the Araw ng Kalayaan
celebration and having participated in activities incident to the
national elections; having served refreshments during these activities;
having rendered a song during one of the barangay meetings, and having
signed the attendance roll presented as Exhs. 6 and 6-A.

Going over the records, we find no reason why the defense witnesses
would fabricate their testimonies or go to the extent of forging the
victim’s signature on the attendance roll when a comparison of the
victim’s signature on the attendance roll with her other signatures on
record would readily show that they were signed by one and the same
person. Besides, most of the defense witnesses are friends or relatives
of the victim.

The testimonies of the defense witnesses clearly contradict the
statement made by the victim that after the alleged rape, she avoided
large crowds and refrained from socializing with other persons because
of the trauma and shock she suffered. The contradiction creates doubt
regarding the honesty and veracity of the victim’s testimony. If indeed
the victim was seen attending these festivities in the company of the
appellant, as we are more persuaded from the records to believe, we find
it highly unnatural for a young woman in her twenties after having been
sexually ravished to continue to socialize with her alleged rapist.

The prosecution presented evidence to show that the appellant entered
the house of the victim through the front door which while left unlocked
still required some force to be opened, yet not a sound was made to
awaken the inhabitants of the house, namely, the victim, her two
brothers, and Teresita España. The victim states that she was awakened
by a completely naked man already on top of her whom she recognized as
the appellant, yet the latter succeeded in removing her bikini parties
with­out awakening her. She alleged that she was forced to have carnal
knowledge with the appellant for more than thirty minutes while the
latter held with his right hand a knife pointed at her yet neither a
shout nor a whimper was made. After the appellant left her room, the
victim stated she neither moved from her position nor said anything to
Teresita España. It has been held that the lack of outcry from the
victim of rape after the offender had left the place contributes to
render doubtful the offended party’s testimony. (People v. Estacio, 111
SCRA 537)

There are other elements giving rise to misgivings of doubt. The
victim’s cousin, Teresita España who later testified as a key
prosecution witness was sleeping with the two young Maliwanag boys in
the other room. This room’s doorway was covered only with a curtain and
was about a meter and a half from the room where the rape allegedly took
place. Marilyn Maliwanag struggled vigorously during the thirty minutes
she was being raped and tried to push the appellant vigorously aside
but she did not make the slightest outcry or sound even when she heard
someone stand up in the other room, not even a moan of pain or weeping
which could have attracted attention. The complainant stated that it was
the first time she was used by a man, yet the appellant’s sex organ
slipped out five times in the course of the struggle and he was able to
reinsert it each time it slipped out. When the appellant left the scene
of the crime, he met Teresita España who was on her way to the toilet.
He had only his pants on as his T-shirt was slung over his shoulder.
Miss España saw him holding a knife which he was wrapping in a piece of
paper. lnspite of her seing a half-naked man with a knife at such an
unholy hour in their house who furtively and hurriedly passed by her on
his way out, España did not cry out, call for help, or even ask him what
he was doing there. She merely entered the room of Marilyn Maliwanag
where she saw her cousin with no skirt and no panties, crying and
covering her eyes with the back of her hand. When Marilyn did not
explain, Teresita simply went back to sleep. Only in the evening of the
following day were the two cousins allegedly able to discuss what had
happened. Yet, the two did not report anything to anybody. Only ten days
later, when Marilyn Maliwanag left Baler, where she had gone to enroll
in a secretarial course, for Cabanatuan City to look for the appellant
and ask him to marry her because of what he had done to her, did España
tell the complainant’s father about the rape. Marilyn stayed in
Cabanatuan until June 23, 1981 when she returned home to San Luis. This
time, she narrated everything to her parents. Still, her parents did not
file any complaint. On June 20, 1981, Jorge Maliwanag had discussed the
matter with a brother of the appellant and this time, on June 23, he
went to see the Mayor. It was only after more than one month had passed
and after a confrontation between Marilyn and the appellant was held
before the mayor that a criminal complaint was filed and the victim
brought to a doctor for medical examination.

We find especially strange the behaviour of the victim, Marilyn
Maliwanag, who left for Cabanatuan City on June 19, 1981 to look for the
appellant for the latter to answer for the wrong done to her. She had
gone to Baler only to enroll in school but proceeded to Cabanatuan City alone in order to persuade her rapist to marry her.

We find equally incredulous the reaction of Jorge Maliwanag, the father
of the victim, who instead of feeling outraged and betrayed, merely
offered an amicable solution to the problem by asking appellant, thru
Ernesto Bihasa and Mayor Cesario Pimentel to marry his daughter.
Appellant opted to marry Teodora Teh Sun instead of the victim, thus
leading to the filing of criminal charges. From the records of the case,
it appears that there was sexual intercourse between the victim and the
appellant but done willingly and voluntarily. This could have been the
offshoot of an amorous relationship between the victim and appellant
which, while not positively asserted by either party appears as the only
logical explanation for the conflicting testimonies of the witnesses.

Quite revealing is the testimony of the medical expert, Dr. Chua:

Q. You mean she stated therein two sexual intercourse on June 10 and June 11, 1981? What do you mean?

A. She told me that there was an intercourse last June 10, 1981 at
11:00 P.M. for 4 times in their own house. And on June 11, 1981, she
also had sexual intercourse for 4 times. (tsn., November 11, 1981, p.
32)

The prosecution attempted to offer an explanation for this testimony. It
argued that the rape was actually committed in the early morning of
June 11, 1981 but because of the proximity of the time of its commission
(1:00 o’clock a.m., June 11, 1981) to the previous night of June 10,
1981, Marilyn stated that it was on the night of June 10, 1981. The
explanation is not convincing enough to override the categorical
statement of the medical expert to the effect that there were two sexual
intercourses, one day apart, one on June 10 and another on June 11.

Because of all the foregoing, the prosecution’s theory must fall. The
crime of rape is not to be presumed. Consent and not physical force is
the common origin of acts between man and woman (U.S. v. De Dios, 8
Phil. 279). The moral conviction that may serve as basis of a finding of
guilt in criminal cases is that which is the logical and inevitable
result of the evidence on record, exclusive of any consideration. Short
of this, it is not only the right of the accused to be freed, it is even
more our constitutional duty to acquit him. (People v. Maisug, 27 SCRA
742).

WHEREFORE, the judgment of conviction appealed from is hereby REVERSED
and defendant-appellant Gil Bihasa is ACQUITTED of the crime charged.

SO ORDERED.

Teehankee, (Chairman), Plana, Relova, and De La Fuente, JJ., concur.

Melencio-Herrera, J., on leave.