SOTERO COLLADO, PETITIONER, VS. THE INTERMEDIATE APPELLATE COURT, THE SOLICITOR GENERAL, AND HELEN TUBAY, RESPONDENTS.

This is an appeal from the decision* of the
then Intermediate Appellate Court in AC-G.R. No. 000834 which affirmed with
modification the decision** of the Regional Trial Court of Tarlac, Tarlac (Branch
LXIV) in Criminal Case No. 3235
convicting herein petitioner Sotero Collado of the crime of Attempted Rape.

Petitioner Collado was charged with the aforementioned crime in a
criminal complaint dated December 29, 1981 filed by private respondent Helen
Tubay which reads as follows:

“That on or about September 21, 1981 at Barangay Bantog, in
the Municipality of Victoria, Philippines, and within the jurisdiction of this
Honorable Court, the said accused did then and there willfully, unlawfully and
feloniously and by means of force and intimidation, commence the commission of
the crime of rape directly by overt acts, to wit: while Helen Tubay, a married woman was sleeping in their house
with her five (5) year old child the said accused without permission of anyone
entered her house; lay an top of the said undersigned, embraced, kissed and
touched her breast and lifted her skirt with the intent of having carnal
knowledge of her by means of force and threats to kill her with a gun and if said accused did not accomplish his
purpose, that is, to have carnal knowledge of the said undersigned, it was not
because of his voluntarily (sic) desistance but because the offended party
succeeded in resisting the criminal attempt of the said accused and because of
the timely arrival of her parents who responded to the loud cries of her five
(5) year old child for help.

Contrary to law.”

(Exhibit “B”, Original
Records, p. 1)

A preliminary investigation was conducted by Assistant Provincial
Fiscal Rizal B. Perez and based on his finding that a reasonable ground to
believe that the accused committed the crime exists, a warrant of arrest
(Original Records, p. 4) was issued and the bailbond was fixed at P10,000.00 (Ibid.,
p. 3). Petitioner Collado posted the
bond (Ibid., p. 7) and upon arraignment on March 25, 1982, entered a plea of
not guilty (Ibid., p. 18). Thereafter, trial ensued.

The prosecution presented as witnesses the complainant, Mrs. Helen Tubay, Pat. Leon Apolonia, Dr. Ricardo Ramos, Pat. Alfonso
Gagarin and Bernabe Tubay, Jr. while the defense presented petitioner Sotero
Collado and his nephew Feliciano Collado as witnesses.

Helen Domingo Tubay, married to Bernabe
Tubay and a public school teacher at the Bantog Elementary School in Bantog,
Victoria, Tarlac, testified that on the night of September 21, 1981, while she
was sleeping in their house with her five (5) year old son, Bernabe Tubay, Jr.,
she felt someone on top of her, smelling of liquor and embracing her. When she opened her eyes, she saw petitioner
Sotero Collado on top of her, pointing a short gun at the left side of her
neck. She was able to clearly see
petitioner Collado and the gun as the room was lighted by a gas lamp
(kingke). Petitioner Collado then
threatened her not to shout or else she would be killed. Thereafter, he raised her silk nightdress to
her waist and started to remove his pants. She then pinched her son Bernabe Tubay, Jr. who gave out a loud
cry. At the same time, she also fought
off the petitioner by pushing him. The
latter stood up and left passing through their living room. The following day, she reported the matter
to their Barangay Captain, Policarpio Cuaresma. Her parents advised her to see her husband who was then working
as a security guard at the U.P. College in Baguio City. Upon the advise of a lawyer, they filed a
complaint (Exhibit “B”, Original Records, p. 1) against petitioner
for Attempted Rape. Witness further
testified that petitioner Collado must have entered their house by destroying
the screen of their window in the kitchen and bending the two bars to allow
passage (Exhibit “A”, Original Records, p. 50) (TSN, Hearing of May
19, 1982, pp. 4-17).

Pat. Leon Apolonio, a policeman assigned at Victoria, Tarlac, testified that on page
330 of their police blotter,
Pat. Gagarin made Entry No. 81365 dated September 23, 1981 which reads:

“That on or about 17 hundred hours, 23 September 1981, Mrs.
Helen Tubay y Domingo, 39 years old, married, teacher in profession, and a resident
of Brgy. Bantog, this municipality, appeared and reported personally to this
station that on or about 12:00 o’clock midnight of September 21, 1981, one
Sotero Collado, resident of the same place, forcibly entered their house and
pointed his gun to her and saying ‘I’ll kill you if you shout!’”

A certification was prepared regarding
said entry in the blotter and marked Exhibit “D” (Original Records,
p. 52) (TSN, Hearing of October 19, 1982, pp. 3-8).

Dr. Ricardo Ramos, of the Tarlac Provincial
Hospital, testified that on September 23, 1981, Mrs. Helen Tubay came to the
Tarlac Provincial Hospital for physical examination. As shown in the medical certificate
(Exhibit “C”, Original Records, p. 51) which he issued to Mrs. Tubay,
the latter sustained an abrasion at the neck about two and a half inches in
length. He further testified that such
an abrasion could have been caused by a piece of wood, a metal with a rough
surface or a piece of stone (TSN, Hearing of October 19, 1982, pp. 19-26).

Pat. Alfonso Gagarin, a member of the INP,
Victoria, testified that on September 23, 1981, Mrs. Helen Tubay came to the
municipal building to report that on September 21, 1981, at about 12:00
midnight, Sotero Collado forcibly entered their house, pointed a gun at her and
said “If you shout, I’ll kill you”. He recorded the report in his personal booklet. He was not able to complete the report as
Mrs. Tubay was then in a hurry to leave. She promised to return the following day but failed to do so. He nevertheless submitted the report to be
finalized (TSN, Hearing of March 16, 1983,
pp. 3-6).

Bernabe Tubay, Jr., son of Mrs. Helen Tubay, testified
that on the night of September 21, 1981, he saw his mother fighting off
petitioner Collado while in a lying position. He further declared that their room was lighted by a gas lamp enabling
him to clearly see petitioner. It was
the first time that he saw petitioner Collado in their house (TSN, Hearing of
April 6, 1983, pp. 2-5).

Petitioner Sotero Collado, a resident of
Victoria, Tarlac, denied the accusation made by Helen Tubay and declared that
on the night of September 21, 1981, he was at Amacalan, Gerona, Tarlac with
Eduvigis Valdez, Miller Valdez, Florentino Valdez, and Bening Yangco to visit
Mr. Orbel Mauricio. From there, they
proceeded to the house of his late Aunt Sabel Valdez in Abagon, Gerona, Tarlac
where they stayed for some thirty (30) minutes. They next went to the house of Bening Yangco in Pura. The latter’s house is about six (6)
kilometers from the house of his Aunt Sabel and they negotiated the distance in
about ten (10) minutes by a tricycle owned by Florentino Valdez. They left Bening Yangco’s place at about
10:30 in the evening and proceeded to Bantog. They parted ways at the Barangay Proper Crossing. He reached his house at about 11:00 in the
evening (TSN, Hearing of April 19, 1983, pp. 8-­12).

At home, he was informed by his wife, Susana, that their eldest
daughter Victa had a stomach ailment. They brought the child to Dr. Crisostomo Carlos’ Clinic for treatment. They stayed in said clinic for about two (2)
hours since there were other patients who came ahead of them. Among the people he saw at the clinic were
Isabelo Marquez and his nephew, Feliciano Collado. They went home at about 2:00 in the morning after his daughter
was given an injection and a prescription (Ibid.,
pp. 13-15).

When asked about the possible motive of Mrs. Helen Tubay for
accusing him of such a serious crime, he said that Mrs. Tubay is probably angry
at him because he confronted her about the complaints of some parents regarding
her frequent tardiness. He received
said complaints when he was the Auditor of the Parents-Teachers Association of
the Bantog Elementary School and the Barangay Captain of the place sometime in
1964-66. The last time he confronted
her about these complaints was in 1981 before the date of the alleged crime (Ibid., pp. 3-8).

Feliciano Collado, nephew of petitioner Sotero
Collado, corroborated the latter’s testimony that he was at the clinic of Dr.
Carlos on September 21, 1981. He
testified that petitioner Collado came with his wife and their two (2) year old
daughter (TSN, Hearing of September 19, 1983, p. 3). He, however, did not have a chance to talk with his uncle as they
were at a distance from where he was seated. They merely acknowledged each other’s presence by winking an eye. He left ahead of petitioner Collado as he
was the third patient in the line when his uncle came (Ibid., pp. 2-9).

On February 6, 1984, the Regional Trial Court of Tarlac (Branch LXIV)
rendered judgment, the decretal portion of which reads:

“WHEREFORE, the Court finds accused Sotero Collado guilty
beyond reasonable doubt of the crime of Attempted Rape, as defined and
penalized under Article 335, in relation to Article 51, both of the Revised
Penal Code, and in the absence of any modifying circumstances, hereby sentences
him to an indeterminate penalty ranging from Two (2) Years, Four (4) Months and
One (1) Day of Prision Correctional, as minimum to Six (6) Years
and One (1) Day of Prision Mayor,
as maximum, with the accessories provided by law, and with credit for
preventive imprisonment undergone in accordance with Article 29 of the Revised
Penal Code, as amended by Republic Act 6127, and to pay the costs.

Tarlac, Tarlac, February 6, 1984.”

(Original Records, pp. 136-137)

Petitioner Collado appealed the decision to the Intermediate
Appellate Court which affirmed the judgment but modified the penalty imposed by
increasing the maximum penalty to eight (8) years and one (1) day of prision
mayor (IAC, Decision, Rollo, p. 23).

Hence, this petition.

On January 13, 1986, the Second Division resolved to deny the
petition for lack of merit (Rollo, p.
43). Petitioner Collado filed a Motion
for Reconsideration (Ibid., pp. 50-51), hence, on January 16, 1989, the
same division gave due course to the petition and required the parties to
submit their respective memoranda (Ibid., p. 55). Public respondent complied with the Court’s
order on February 27, 1989 (Ibid., p. 57) while the petitioner complied
on March 8, 1989 (Ibid., p. 72).

The issue to be resolved in this petition is whether or not the
guilt of petitioner Collado has been established beyond reasonable doubt.

Petitioner Collado contends that the delay of the complainant in
lodging the complaint renders doubtful the veracity of the charge considering
that there was no threat exerted on her as an adult public school teacher. The incident took place on September 21, 1981 but the complaint was
lodged about three (3) months after. Furthermore, the discrepancy in the police report and the complaint
militates against the conviction of petitioner Collado. When complainant reported the incident to
the police, no mention of the crime of attempted rape was mentioned. However, the complaint filed was for the crime of attempted rape. Her unexplained failure to account for such
accusation of attempted rape at
the earliest opportunity lends transparency to her charge since this is an
admission against interest (Memorandum for the Petitioner, Rollo, pp. 75-76).

The petition is devoid of merit.

Firmly entrenched is the rule that conclusions and findings of
fact of the trial court are entitled to great weight on appeal and should not
be disturbed unless for strong and valid reasons because the trial court is in
a better position to examine the demeanor of the witnesses while testifying on
the case (People v. Lutanez, 192 SCRA 588 [1990]; People v. Tasarra, 192 SCRA
266 [1990]).

Collado’s contention that complainant’s delay in lodging the
complaint renders the veracity of the charge doubtful is without merit. This has been debunked by the positive
declaration of the prosecution witnesses regarding his identity and
participation in the crime (People v. Beringuel, 192 SCRA 561 [1990]). Complainant Helen Tubay positively
identified petitioner Collado since the room was illuminated by a gas
lamp. Her son, Bernabe Tubay, Jr.,
likewise testified that he clearly saw petitioner Collado since the room was
lighted by a gas lamp. The lighting
produced by a gasera enables one to identify positively persons in the dark of
the night (People v. Paringit, 189 SCRA 478 [1990]). Moreover, it has been held that the testimony of children of
sound mind is likely to be more correct and truthful than that of older persons
so that once established that
they have fully understood the character and nature of an oath, their testimony
should be given full faith and credence (People v. Pedrosa, 169 SCRA 546
[1989]).

Petitioner Collado’s main defense is alibi. He alleged that he was at the clinic of Dr.
Carlos on the night of September 21, 1981 which is about seven (7) kilometers
from the house of the complainant Helen Tubay. He did not have the chance to pass by her house as he went to the house
of his nephew who had a tricycle which he himself drove (TSN, Hearing of April
19, 1983, p. 16). Defense of alibi is inherently weak and
cannot prevail over the positive identification of the accused. For such a defense to succeed, the accused
must establish physical impossibility and improper motive of the prosecution
witnesses, which matters the accused failed to prove (People v. Calixto, 193
SCRA 303 [1991]). The testimony of
Feliciano Collado does not carry much weight as he is the nephew of the
petitioner. Alibi is weak if it is established
by the accused himself and his immediate relatives and not by credible persons
(People v. Beringuel, supra). As
aptly observed by the Court of Appeals, the accused could easily have presented
Dr. Crisostomo Carlos to corroborate his version but he did not. Besides, unless more proof is given, it is
difficult to conceive of a provincial doctor’s clinic filled with several
patients at MIDNIGHT.

IN VIEW OF THE FOREGOING, the decision appealed from is hereby AFFIRMED.

SO ORDERED.

Melencio-Herrera, (Chairman), Padilla, Regalado, and Nocon, JJ., concur.

* Penned by then Associate Justice
Emilio A. Gancayco and concurred in by Associate Justices Federico B. Alfonso, Jr. and Lorna S. Lombos-de
la Fuente.

** Rendered by Judge Arturo U.
Barias, Jr.