PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RAYMUNDO CRUZ, ACCUSED-APPELLANT.

This is an appeal from the decision^[1] of the
Regional Trial Court, Branch 161, Pasig, Metro Manila dated July 10, 1987 in
Criminal Case No. 39903 convicting herein appellant Raymundo Cruz of the crime
of rape committed against Carmelita Gantiga; a fourteen (14) year old mental
retardate. The dispositive portion of
said decision reads, as follows:

“WHEREFORE, premises considered, the Court finds accused
RAYMUNDO CRUZ guilty beyond reasonable doubt of the crime of rape and hereby
sentences him to suffer the penalty of reclusion perpetua, to
indemnify Carmelita Gantiga in the sum of P30,000.00 by way of moral damages,
Lourdes Gantiga, the mother of Carmelita Gantiga in the sum of P6,000.00 as
actual damages, and to pay the costs.

“SO ORDERED.” (RTC Decision, Rollo, p. 34).

Accused-appellant Raymundo Cruz was charged with the
abovementioned crime in a criminal complaint signed by Lourdes Gantiga, mother
of the victim, which reads:

“That on or about the 19th day of January, 1980, in the
Municipality of Pasig, Metro Manila, Philippines, and within the jurisdiction
of this Honorable Court, the above named accused did then and there, willfully,
unlawfully and feloniously have carnal knowledge of Carmelita Gantiga, a girl
who is fourteen (14) years of age and has been mentally retarded or of unsound
mind.

“Contrary to law.

“Pasig, Metro Manila, February 6, 1981.” (Annex
“A”, Original Records, p. 1)

An Order of Arrest was issued by Judge Nelly L. Valdellon-Romero
on April 1, 1981 (Original Records, p. 3). Appellant posted bail in the amount of P20,000.00 through the Philippine
Phoenix Surety and Insurance, Inc. on May 25, 1981 (Ibid., p. 6) hence
his release was ordered on the same day by Judge Eriberto H. Espiritu (Ibid.,
p. 5). Upon his arraignment on October
27, 1981, appellant Cruz entered a plea of not guilty (Ibid., p.
30). Thereafter, trial ensued.

The prosecution presented five (5) witnesses, namely: Lourdes
Gantiga, Melanie Garcia, Dr. Manuel Celis, Dr. Rodolfo Lesondra and the victim
herself, Carmelita Gantiga. On the
other hand, the defense presented Virgilio Bragat, Ester Cruz, the accused
Raymundo Cruz and Melanie Garcia, who retracted her testimony for the
prosecution and testified for the defense.

Lourdes Gantiga, mother of the victim Carmelita
Gantiga, testified that her daughter has been a mental retardate since birth as
evidenced by her poor performance in school. She started going to school at the age of seven (7) and spent two (2)
years in every grade, hence, at the time of the incident, Carmelita was in
Grade III although she was already fourteen (14) years old. While Carmelita can write her name, she can
neither read nor count and gets promoted to the next grade only upon the
request of Lourdes Gantiga, her mother (TSN, Hearing of July 9,1984, pp. 15-16).

On January 19, 1980, the day in question, Lourdes Gantiga was in
Daang Paa, Kalawaan, Pasig, attending to the construction of their house in the
field. When she came home in the
evening of the same day, she noticed that Carmelita seemed to be afraid of something,
would not talk and was startled whenever Lourdes would talk to her (Ibid.,
pp. 1-8; p. 16). Four (4) days later,
or on January 23, 1980, Melanie Garcia, a twelve (12) year old playmate of
Carmelita, informed her that the latter was raped by herein appellant Raymundo
Cruz. She brought her daughter to the
NBI. The results of the examination
confirmed the information relayed by Melanie Garcia hence, she filed
thecriminal complaint for rape against herein appellant. She identified the appellant in court and
declared that they had been
neighbors since he was a small
boy (Ibid., pp 9-12).

On cross examination, she testified that according to Carmelita,
the incident happened in the house of the accused. The latter undressed her and made her lie down on a bamboo
bench. When the accused was on top of
her, she felt pain in her private part. According to Melanie, Carmelita was crying while all these were taking
place (Ibid., pp. 17-18).

Melanie Garcia, a playmate of Carmelita and who was
sixteen (16) years old when she took the witness stand, testified that the
accused has been their neighbor since she was a child. At about six o’clock in the evening of
January 19, 1980, while she and Carmelita were playing in front of the house of
the accused, the latter called them and on the pretext that he would tell them
something, asked them to enter his house. Once inside, the accused pulled Carmelita towards the Sala set,
undressed her, including her underwear and ravished her. Melanie saw all these as she was also inside
the house and was very near them. Due
to her fright, she did not do anything she merely stood there and watched her
helpless friend. After the accused had
satisfied his lust, he told Carmelita to dress up and told them not to report
the matter to their Ate Lourdes (Carmelite’s mother) otherwise he would kill
them and throw them into the river (TSN, Hearing of August 6, 1984, pp. 21-32).

On cross examination, she testified that she was afraid of the
accused, hence, she did not do anything despite the fact that she was free to
move and nobody was preventing her from going out. She likewise declared that the place was lighted (Ibid.,
pp. 42-45).

Dr. Manuel Y. Celis, a
doctor at the Rizal Provincial Hospital, testified that he made a
neuropsychiatric examination of Carmelita Gantiga and prepared a report in
connection with his study dated August 3 1980 (Exhibit “B”, Original
Records, p. 157). He testified that
Carmelita Gantiga was referred to him by Mr. Cresencio Reyes of the Social
Services. On interview with the patient and her mother, he suspected that
the patient was suffering from mental ratardation, hence he referred the case
to the National Mental Hospital
for psychological test. The results of
the psychological test confirmed his suspicion and revealed that the patient
was suffering from retardation, imbecile level, moderate sub-normal. The degree of mental retardation of the patient is mild moderate, her
I.Q. was about 67 to 86, comparable to
the mental age of a three (3) to
seven (7) year old child. The patient
could communicate with other people although not intelligently. She can differentiate right from wrong, give
the highlights of a situation but could not recall things Vividly nor
understand complicated questions (TSN, Hearing of December 10, 1984, pp.
50-53).

Dr. Rodolfo Lesondra, Supervising
Medico-Legal Officer of the National Bureau of Investigation, testified that he
examined the person of Carmelita
Gantiga and prepared Living Case. No.
MGI-80-73 (Exhibit “C-RTC, Branch 161”, Original Records, p. 159) in connection
with the examination he conducted. In
said report, he noted the presence of a healed laceration at 7:00 o’clock
position corresponding to the face of the clock which could have been caused by
sexual contact (TSN, Hearing of May 15, 1985, pp. 56-58).

The last prosecution witness to testify was Carmelita Gantiga,
the mental retardate victim. Due to her
condition, the prosecuting fiscal
requested the court that he be allowed
to ask leading questions. The lower
court granted the request over
and above the objection of the defense counsel. After identifying the accused in court, Carmelita Gantiga declared
that she was raped by the accused in his house in Pasig. She corroborated the testimony of Melanie
Garcia for the prosecution that they were playing when Raymundo Cruz called
them as he would tell them something; that upon entering the house, she was pulled away from Melanie, stripped of
her clothing and made to lie on a bamboo
bench where the accused ravished her. Melanie Garcia was just nearby when all these were taking place (TSN, Hearing of July 16, 1985, pp.
63-66). Despite her mental capacity,
her recollection of the incident remained the same during cross examination (Ibid.,
pp. 67-69).

Melanie Garcia, this time testifying for the
defense and aware that she can be prosecuted for perjury for giving false
statements, retracted her testimony for the prosecution given on August 6,
1984. According to her, she was given clothes and money by Mrs. Lourdes Gantiga to make her
testify for the prosecution and what she narrated in court were all provided to
her (TSN, Hearing of April 15, 1986, pp. 82-83). Her parents wanted her to testify against the accused, otherwise she
would be beaten up if she did not appear in court. At the time she retracted her testimony, she was living with her grandfather, whose daughter is the
wife of the accused. She, however,
denied any knowledge that the accused Raymundo Cruz was courting her aunt when
she testified on August 6, 1984. The accused and her aunt got married in 1985
(Ibid., pp. 86-89).

She testified that on the day in question, she was in the house of the accused with the
latter and his brother Lito conversing about their everyday life. The complainant Carmelita Gantiga came to
ask for some soap but hurriedly left before she could be given some as her
mother was calling her (TSN, Hearing of January 20, 1986, pp. 72-75)

Virgilio Bragat, a fisherman residing at Hulong
Dagat, Malabon, Metro Manila, testified that on January 19, 1980, he and the accused, together with three (3)
other men, were on board the F.B. Margarita fishing boat. They left for the sea at 10:00 o’clock in
the morning of January 19, 1980 and came back at about 2:00 o’clock in the
morning of the following day (TSN, Hearing of June 3, 1986, p. 95).

On cross examination, he said that he remembers the day quite
vividly although he does not keep a diary of his activities, because he learned
on January 20, 1980 that the accused had a case in court (Ibid., pp. 97-98).

Ester Cruz, sister of the accused, testified that
the accused was living with them at the time of the incident. He left at about 6:00 o’clock in the morning
of January 19, 1980 for Malabon but she cannot remember if he returned that day
as he usually stays in Malabon for four (4) or five (5) days (TSN, Hearing of
July 1, 1986, pp. 101-102).

Accused Raymundo Cruz denied the commission of the
offense he is charged with as he was then fishing in Malabon on cross
examination, he stated that from their place, he took a tricycle to San Joaquin
in Pasig, then a bus along EDSA to Gasak, Malabon. His travel time is more or less two (2) hours depending on the
traffic conditions (TSN, Hearing of July 29, 1986, pp. 106-107).

As aforementioned, the trial court convicted herein appellant of
the crime of rape and sentenced him to suffer the penalty of reclusion perpetua. Hence, this appeal.

The issues in the case at bar are whether or not the guilt of the accused has been
proven beyond reasonable doubt and whether or not the trial court erred in imposing
the penalty of reclusion perpetua.

Appellant Raymundo Cruz contends that the court a quo
erred in giving credence to the
testimony of Melanie Garcia as a prosecution witness. It is incredible for the accused to commit the crime in the
presence of Melanie Garcia, a normal twelve (12) year old girl. Equally incredible is the fact that Melanie
did not go out to seek help from outside when
no one prevented her from doing so. The facts are clear that Lourdes Gantiga, mother of the complainant, was
the “kumadre” of Melanie’s father; that Melanie was given money and
clothes by Lourdes Gantiga to testify against the accused and that she was beaten up by her father whenever
she failed to appear in court (Brief for the Accused-Appellant, Rollo, p. 76).

Appellant Cruz further alleged that between 10:00 o’clock in the
morning of January 19, 1980 to 2:00 o’clock in the morning of January 20, 1980,
he was fishing along Manila Bay as testified to by Virgilio Bragat and his
sister, Ester Cruz. Thus, it was impossible
for him to be at the scene of the crime by the nature of his occupation. Furthermore, his brother has a pending case
for rape wherein the victim is also Carmelita Gantiga and allegedly committed
prior to this case. The presence of the
healed laceration, as found by the
National Bureau of Investigation and Dr. Lesondra, cannot be construed to be
the result of the alleged crime committed on January 19,
1980. Lacerations of this nature cannot
heal within five (5) days from the time they were inflicted
(Ibid., pp. 79-80).

Appellant likewise
questions the findings of the court a quo that complainant
Carmelita Gantiga is a mental retardate. There is no direct evidence to show that Carmelite is suffering from
mental, retardation. While Dr. Celia testified that he referred the complainant to the
National Mental Hospital, no doctor from said hospital was Presented by the
prosecution (Ibid., p. 77).

Appellant’s contentions are without merit. When a witness testifies for the prosecution
and retracts his or her testimony and subsequently testifies for the defense,
the test in determining which testimony to believe is one of comparison,
coupled with the application of the general rules of evidence. A testimony given in court should not be
lightly set aside and before this can be done, both the previous testimony and
the subsequent one should be carefully compared, the circumstances under each
must be carefully scrutinized, and the reasons or motives for the change
carefully analyzed. It would be a
dangerous rule for courts to reject testimonies solemnly taken before courts of
justice simply because the witnesses who had given them later changed their
minds. Such, rule would make solemn
trials a mockery and place the investigation of truth at the mercy of unscrupulous
witnesses (Reano v. CA, G.R. No, L-80992, September 21, 1988 [165 SCRA 525]
reiterating People v. Ubina, 97 Phil. 515 [1955]).

A perusal of the testimony of Melanie Garcia for the prosecution
as against her testimony for the defense shows that her testimony as a witness
for the prosecution has all the earmarks of truth. She testified in a straightforward manner on how the crime was
committed which remained unchanged despite the extensive cross examination by
the defense counsel. Furthermore, when
Melanie Garcia retracted her testimony for the prosecution, she was living with
her grandfather whose daughter is the wife of the accused. This means that at the time of her
recantation, the accused had become her uncle, lending doubt as to the truth of
her testimony for the defense. An
eyewitness may be prevailed upon to either recant, the first statement or tell
a different story once placed on the witness stand. The reason is that retractions can easily be secured from poor
and ignorant witnesses, usually for monetary considerations (People v. Samson,
G.R. No. 55520, August 25,1989 [176 SCRA 710]). If indeed she was given money and clothes by Lourdes Gantiga to
testify for the prosecution, there is no assurance that she was not also bribed
to recant her testimony for the prosecution and to testify for the defense.

As to the appellant’s allegation that he was out at sea from
January 19, 1980 to January 20, 1980, it has been consistently held that to
establish alibi, it must be shown that it was physically impossible for the
accused to be present at the place where the crime was committed at the time of
its commission. It must be supported by
clear and convincing evidence (People v. Godiness, G.R. No. 93410, May 7, 1991
[196 SCRA 965]). While appellant’s
alibi was corroborated by Virgilio Bragat and his sister Ester Cruz, the same
must fail in view of the testimony of Melanie Garcia for the defense that at
around 6:00 to 7:00 o’clock in the evening of January 19, 1980, she (Melanie)
was at the house of the appellant conversing with him and his brother (TSN,
Hearing of January 20, 1986, pp. 72-75).

As to appellant’s contention that there is no direct evidence to show that
Carmelita Gantiga is mental retardate, records show that during the trial, he
did not object to the competency of Dr. Celis when the latter testified on
December 10, 1984. He did not even
bother to cross examine Dr. Celis. His
failure to object to the competency of Dr. Celis operates as a waiver on his
part. The acceptance of an incompetent
witness to testify, as well as the allowance of improper questions that may be
put to him while on the, witness stand, is a matter resting in the discretion
of the litigant. He may assert his
right by his timely objection or he may waive it, either expressly or by
silence. Once admitted, the testimony
is in the case for what it is worth and the judge has no power to disregard it
for the sole reason that it could have been excluded if it had been objected to
nor to strike it out on his own motion (People v. Rizo, G.R. No. 86743, August
30, 1990 [189 SCRA 265]).

As to the penalty imposed, accused Raymundo Cruz contends that
even assuming that the offense was committed, the trial court erred in imposing
the penalty of reclusion perpetua on the ground that said penalty
may be imposed only if the rape results in the death or mental alienation of
the victim, which is not obtaining in the case at bar.

Again, appellant’s contention is bereft of merit. The imposable penalty for the offense of
rape as provided for in Article 335 of the Revised Penal Code is reclusion
perpetua, a single indivisible penalty which, pursuant to Article 63 of
the same code, should generally be applied regardless of any mitigating or
aggravating circumstance that might have attended the commission of the deed
(People v. Galang, G.R. No. 70713, June 29, 1989 [174 SCRA 454]).

PREMISES CONSIDERED, the decision appealed from is
AFFIRMED.

SO ORDERED.

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

^[1]
Rendered by Judge Cicero C. Jurado.