PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BONIFACIO ANDO, JR., DEFENDANT-APPELLANT.

This is the prosecution of an army officer for allegedly raping
the wife of one of his men in the presence of his aide.

The accused, Bonifacio Ando, Jr., was
then a captain of the Armed Forces of the Philippines (AFP) being the supply
officer and superior of Cpl. Ricardo Villanueva of Calbayog City
of the 3rd Infantry Division at Laoang, Northern
Samar. 
On August 11, 1985
while he and Cpl. Artemio Fabi
were on their way from Laoang to attend a seminar at
RUCA Catbalogan, Samar
they arrived in Calbayog
City late in the afternoon.  Ando informed Villanueva that they may have
to stay overnight in Villanueva’s house. 
He handed him a P10.00 bill for viand and supper and left their luggage
as they proceeded to the bus terminal. 
Upon verifying that there was no more transportation for Catbalogan, Samar,
they returned to the Villanueva residence at 9:00
o’clock in the evening at Barangay Matobato.  They were
received by Martina Villanueva, the wife of Villanueva.  At that time, Villanueva was not in the house
as he was in Barangay Trinidad.  Ando removed his trousers in the sala in front of Martina who turned away and went to the
kitchen to set the table for the supper of their guests.  Only Fabi ate
supper.  While Martina was attending to Fabi, Ando went to her and suddenly held her hands,
twisting them behind her and then with his left hand holding a piece of cotton
with a strong-odored substance, covered her mouth and
nose and forcibly dragged and pulled her towards the bedroom.  Surprised, she struggled to free herself
notwithstanding her small and frail constitution as compared to Ando who was
robust, big and strong.  Upon noticing
the commotion, Fabi admonished Ando three times to
refrain from disgracing her.  Martina
felt weak and dizzy after smelling the cotton. 
Ando pushed her to the bed and removed her panty forcibly snapping its
waistband and tearing it at its seam. 
Then he threatened her with death. 
Due to the threat to her life, she was seized with fear and she
trembled.  She was not able to shout and
make a sound or resist further.  Thus,
Ando removed his brief, placed himself on top of her, inserted his finger into
her genital and later had sexual intercourse with her against her will.  They were unnaturally positioned across the
bed when he inserted his penis into her vagina. 
After he finished ravishing her for the first time, Ando wiped her genital organ with the bed
spread.  Thereafter he again inserted his
penis into her vagina.  However, upon
hearing the sound of a motorcycle going towards the house, he told her to dress
up.  She was weak and could hardly move
so he dressed her up himself.  He
threatened her again with death, including her children in the threat, should
she tell her husband what happened.

Fabi who was present then attested that
the accused forcibly dragged and pulled Martina towards the bedroom and later
had carnal knowledge with her despite his admonitions not to do so; that the
accused got angry with him and continued
with his lustful attack against her; that Fabi could
not stand the sight of what the accused was doing to Martina, so he did not finish
his supper and stepped out of the house.

Martina did not immediately reveal her misfortune to her husband
that evening for fear that there might be a bloody confrontation between them
and because of the threats of the accused. 
It was only after the accused and Fabi left
early in the following morning that Martina revealed everything to her
husband.  She immediately submitted
herself to a medical examination at the Calbayog General Hospital
wherein Dr. Jose Ong, resident physician, found as
follows:

“1. Superficial laceration 1”
posterior portion vaginal canal;

2.  Minimal blood coming
from the O.S.;

3.  Vaginal smear –
negative.”^[1]

The couple also went to Rawis, Laoang, Samar at the Philippine Army headquarters
where they filed a complaint against the accused.

In due course, and after a preliminary investigation of the
matter, the complaint for the crime of rape was filed by City Fiscal at Calbayog City
in the Regional Trial Court of the
same city.  After arraignment where the
accused pleaded not guilty and the trial on the merits, a decision was rendered
on October 29, 1987 convicting the accused of the crime of rape committed in the dwelling of the complainant and sentencing him to suffer the penalty of reclusion perpetua, to
indemnify the offended party, Mrs. Martina Villanueva, the sum of P12,000.00
and to pay the costs.

Not satisfied therewith, the accused now interposed this appeal
to this Court alleging five (5) errors committed by the trial court the
resolution of which revolves on the singular question of the credibility of the
witnesses.

The appeal is devoid of merit.

Firstly, the appellant contends that the probability of any
copulation is remote considering that (a) at the time, the complainant was in
her menstrual period; (b) the alleged offense was committed in the presence of
a companion of the appellant, Cpl. Fabi; (c) the
alleged sexual congress occurred at the ground floor of the Villanueva
residence where her four children and in-laws were residing and their house was
only one (1) meter distance from that of
Leonardo Cepeda who was then awake and smoking
on the bench by the window; (d) that although Cpl. Villanueva was not at the
house then, the appellant knew he merely delivered two sergeants at their camp
at Sabang and would immediately return to their
residence; (e) that complainant was able to meet her husband upon his arrival
that evening with composure while Cpl. Fabi continued
his dinner in a casual manner; and (f) the medical findings show that the
vaginal smear from the complainant’s private parts was free of spermatozoa.

The Court is not persuaded. 
While it may be true that the complainant was in her menstrual period,
it appears that it did not deter the
appellant from his bestial desire. 
Moreover, the presence of his aide and companion, Cpl. Fabi, did not bother him at all.  As a matter of fact, it even emboldened
him.  Indeed, he got mad when Fabi tried to dissuade him from pursuing his evil
designs.  Obviously, the appellant lost
all sense of reason.  All he wanted was
to be able to have carnal knowledge of the complainant.

At the time of rape it was past 9:00
o’clock.  The members of the
household including the children of complainant and her in-laws were already
asleep.  Because of the threat to kill
her in addition to the fact that the complainant was weakened and felt dizzy
because of what she was made to smell by the appellant, she was not able to
offer any resistance or cry out for help from the members of the household and
the neighborhood.

It may be likewise be true that the appellant knew that Martina’s
husband, Cpl. Villanueva may return any time. 
Apparently, the appellant wanted so much to accomplish his carnal desire
towards Martina even for a fleeting moment or even for “four minutes”
as the appellant computes, until the husband returned.  And when her husband returned, Martina met
him casually as she was threatened and directed to act normally by the
appellant.  Moreover, she did not want to
immediately reveal her plight to her husband because of the possible grave consequences.  By the same token, if Cpl. Fabi acted casually by finishing his dinner and going to
bed, thereafter, perhaps he was still making up his mind if he should.  Moreover, the appellant was his superior
officer and had moral ascendancy over him.

As to the absence of spermatozoa in the vaginal smear of the
private part of the complainant, suffice it to say that the absence thereof
does not necessarily mean that the rape was not consummated.  The physical findings of the physician is to
the effect that there were superficial lacerations in the vaginal canal showing
that there was penetration by force.  And
if there was no spermatozoa that was deposited in the vagina of the
complainant, it must have been because it was expelled by her menstrual flow.

The defense of the appellant through his sole testimony is a mere
denial.  He alleges that although he was
actually present in the residence of the Villanuevas
on that evening when he went to the room and took off his trousers, Martina
went inside the room and told him that she was fixing his beddings, and that
she apologized that they did not have a clean blanket for him.  He also states that while she was fixing his
bed, he was transferring his bag and pair of shoes to the upper portion of the
bed.  They were both facing the wall
close to each other.  He likewise alleges
that he told her about the activities of her husband and to watch out for him
as he heard he was maintaining a woman at Catbalogan
and that he was always out.  Martina kept
mum and went out and rested in the sala.

Appellant alleges that the motive of the Villanuevas in fabricating the case against him
was because way back in 1983 he recommended that Cpl. Villanueva be prosecuted
for selling firearms and ammunition but the case was dropped as there was no
sufficient evidence; that when he assumed office as supply officer, he
abolished the gasoline allowance for the motorcycle of Villanueva and he did
not supply him with combat shoes so that he was bitter about this; and that he
knew of the plans of Villanueva to smuggle out arms and ammunition but he did
not inform him about it but the case against Villanueva was dropped as the real
culprit was prosecuted.

The Court is not convinced that there was any ill motive on the
part of the Villanuevas in prosecuting the
appellant.  If indeed the appellant knew
that he had wronged the Villanuevas he would not have
even thought of staying overnight in the Villanueva residence on that fateful
evening of August 11, 1985, and if the Villanuevas
have any ax to grind against appellant they would not have extended the
hospitality of their home or attended to the needs of the appellant and Fabi in the traditional Filipino hospitality.  The alleged ill motive imputed by the
appellant to the Villanuevas is imaginary and
concocted and is far from credible.

The appellant also argues that the alleged force and intimidation
have not been established in evidence. 
He claims that the version of the complainant that she was made to smell
drugs by the appellant is false and malicious. 
It is a question of which to believe, the positive declaration of the
complainant or the simple denial of the appellant.  The answer is obvious: the positive assertion
should be given more weight.  Of course
the appellant claims that Cpl. Fabi did not notice
that the appellant placed cotton on the nose of the complainant.  It must be because the attention of Fabi was called only after he heard the commotion when
complainant was being dragged by the appellant towards the bedroom.  That Fabi affirmed
that he saw the appellant drag the victim to the room is clear evidence of the
use of force.  Indeed the victim asserted
that her arm was twisted from behind by the appellant who pushed and threatened
her so she did not resist any
further.  She was cowed into submission
and she was weak and dizzy.

The argument of the appellant that the complainant freely and
willingly submitted herself to the sexual act without manifesting dislike is an
unconscious emergence of his ambivalent posture of denying having had sexual
intercourse with the complainant in one breath; and in another, admitting the
coitus but alleging that the complainant freely and willingly submitted herself
to his will.  And the composure of the complainant
immediately after the sexual congress does not betray the falsity of the charge
as contended by appellant.  It was such
overwhelming fear arising from the threat of the appellant and of a possible
bloody confrontation with her husband that is why she kept mum and did not show
any unusual behavior to her husband.

As to the judge who penned the decision in this case who was able
to hear only the evidence of the defense and not the prosecution, as it was his
predecessor who heard the evidence of the prosecution, it did not thereby
disqualify him from rendering a decision based on the records and transcript of
the case.  It may be true that he may not
have the opportunity of personally assessing the credibility of the witnesses
for the prosecution but he had the opportunity to observe the appellant while
testifying.  The record of the testimony
of the prosecution witnesses can very well be assessed and compared with that
of the appellant in arriving at the verdict.

The Court finds and so holds that the presumption of innocence in
favor of the accused has been overturned by evidence beyond reasonable doubt on
the part of the prosecution.  Here is a
case of a superior officer who, taking advantage of his ascendancy over one of
his men and the hospitality of his family ravished his wife even in the
presence of an aide.  The latter was so
scandalized that he mustered the nerve to dissuade him three times against
pursuing his carnal designs but to no avail. 
Instead the appellant consummated the act not once but twice.  He desisted only upon the early return of the husband. 
And the latter unknowingly continued to shower the appellant his
hospitality.  The appellant savored all
of it but early the next morning he left without so much as bidding goodbye or
thanking his hosts.

WHEREFORE, the decision appealed from is AFFIRMED in toto with the modification
that the indemnity to the offended party should be increased to P30,000.00,
with costs against the appellant.

SO ORDERED.

Narvasa, (Chairman), Cruz, Griño-Aquino, and Medialdea, JJ., concur.

^[1]
Exhibit “B”.