G.R. No. 84835. July 31, 1990
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FRANCISCO TUMALAD, ACCUSED-APPELLANT.
FELICIANO, J.:
The accused-appellant Francisco
Tumalad was charged with the crime of rape in an
Information filed on 30 January 1981 by complainant Milagros Dioneda
before the then Court of First Instance of Sorsogon. The complaint read as follows:
“That on or about the 2nd day of September, 1980, in the
Municipality of Bacon, Province of Sorsogon,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused with lewd design, by means of force, violence, threats and
intimidation, did then and there wilfully, unlawfully
and feloniously succeeded to have carnal knowledge of one MILAGROS DIONEDA, a
minor, 15 years old against her will and consent, to the damage and prejudice
of Milagros Dioneda.
CONTRARY TO LAW.”[1]
After trial, the trial
court, in a decision[2] dated 31 August 1987 found the accused guilty of the crime
charged. The dispositive
portion of the decision reads:
“ACCORDINGLY, the accused FRANCISCO A. TUMALAD,
is convicted of Rape defined and penalized under par. 1, Art. 335 as amended by
Rep. Act No. 4111 and sentences him to Reclusion Perpetua
and to indemnify the complainant the amount of P12,000.00 for moral damages,
and costs of the suit.
SO ORDERED.”
The facts of the case
were summarized by the trial court in the following manner:
“The prosecution’s evidence was supplied by Dr. Jaime Co, Florentino Dioneda and the
private offended party, Milagros Dioneda. The evidence shows that Milagros is 15 years
old, virgin, born on July 4, 1965. x x x Milagros was taken as a ward and household help by her
aunt, Hilda Dioneda, sister of her father, who was to
finance her high school studies. For
almost three years, Milagros was living with Hilda in Hilda’s house in Burabod, Bacon, Sorsogon. The accused, Francisco Tumalad,
was the common-law husband of Hilda, also living with his common-law wife
almost ten (10) months before the incident.
On the fateful day of September
2, 1980, Milagros
arrived home from school for lunch. Her
aunt Hilda was at her place of work in Botica Ocampo, Sorsogon, Sorsogon, next town from Bacon, Sorsogon. Hilda’s routine was to leave for work in the
morning and return home in the evening.
The accused who was recently jobless remained
in the house tending their small store.
Around 12:00 noon, a very rainy day, Milagros and the
accused took lunch together. They were
the only two persons in the house. After
lunch and (when Milagros was) about to wash the dishes, the accused who was now
inside the bedroom called for Milagros, ‘Milagros, come here’. The time was around 1:30 p.m. and raining heavily. Sensing no evil motive for the call, Milagros
entered the bedroom and asked, ‘What is it, Tio?’. The accused
grabbed Milagros’s hands. She struggled, got free and moved towards the
door but the accused caught her hand again, pulled her inside and pushed her to
the bed. She hit her knee on the bed, fell flat on the bed faced down. The accused locked the door and approached
Milagros who was lying on the bed. The
accused started embracing and kissing Milagros and telling the latter not to
make any noise, ‘if you still want to live’.
The accused was in shorts and shirtless.
At this point Milagros was now flat on the bed, face up and the accused
lying on top, holding Milagros on both hands with his left hand. The knee of the accused was placed between
the thighs of the girl with his free right hand, unzipped his pants releasing
his penis. When the
accused pulled down Milagros’ panty the latter shouted ‘Tia
Mameng‘, another aunt, Carmen, who lives across the
street. To stop the cry the
accused covered the mouth of Milagros with his hand. Milagros was biting the rapist but the latter
pulled her hair tilting her head.
Milagros kept on struggling and moving her body to prevent being
raped. All her efforts were of no avail
as accused’s penis penetrated her vagina. Milagros felt pain upon penetration. There was blood in the vagina. When the accused stood up, Milagros noticed a whitish fluid on
her vagina. Then someone appeared at the
store to buy. Milagros got her panty,
walked towards the store which was inside the house and proceeded out the house
to the house of her Tia Mameng
across the street. From the house of her
Tia Mameng, Milagros
proceeded one kilometer to her father’s house and reported to her father her
harrowing experience of being raped. Her
aunt, Tia Mameng, followed
her. Receiving his daughter’s news, the
father went to the house of the accused.
Milagros, with her Aunt Carmen, proceeded to the house of her
grandfather and again reported her harrowing experience to her grandfather.
Testifying, Florentino Dioneda, the father of the victim declared, that he signed
the original complaint for rape for his minor daughter (Exh.
‘B’). Around 1:30 p.m. on September
2, 1980, his daughter reported to him in his house that the accused
raped her. Losing no time he went to the
house of the accused. Confronting the
accused about his daughter’s report, the accused pushed him out of the house. He left accused’s
house and proceeded to the police station and reported the rape incident. From the police station, he brought his
daughter to the Provincial Hospital
in Sorsogon, Sorsogon for
medical examination. The following day
he filed a criminal complaint against the accused.”[3]
In the instant appeal, the accused raises the following assignment
of errors:[4]
“I
The lower court erred in placing absolute, uncritical reliance on
the evidence of the prosecution, without considering even half as much the
evidence of the defense.
II
The lower court erred in its unsupported finding that
accused-appellant had a strong moral and financial influence over the offended
party.
III
The lower court erred in its finding that the offended party was
without any motive weighty enough to make her trump up charges against
accused-appellant.
IV
The lower court erred in not acquitting accused-appellant
on the ground of reasonable doubt.”
The errors assigned all come down to the argument that the
prosecution had failed to prove the guilt of the accused beyond reasonable
doubt. Accordingly, the assigned errors
will be discussed together in the paragraphs which follow.
The principal defense presented by the accused was basically that
he did not rape the complainant Milagros Dioneda,
because he had no need to rape her, that indeed complainant had led the accused
into sexual play and onanism but not
intercourse. The accused, more
specifically, first pointed to the circumstance that no signs of physical
injury were found on her body upon physical examination of Milagros Dioneda. Milagros
was examined by Dr. Jaime Co on the afternoon of the very day that the rape
occurred. His finding
were summarized by the trial court as follows:
“According to Dr. Jaime Co, on September 2, 1980 around 3:25
p.m., he examined Milagros Dioneda. His external findings: No external sign of physical injury; very
scanty pubic hair. Internal
findings: Vagina admits one (1) finger
with slight difficulty; hymen with fresh laceration at 6:00 o’clock; smear for spermatozoa – positive. He issued a medical certificate of his
findings (Exh. ‘A‘). In his opinion there was penetration of the
penis into the vagina because of presence of sperm cells, deep inside the
vaginal canal.”[5]
The circumstance that, despite her testimony that she had fought
and resisted vigorously the sexual assault upon her by the accused, there were
no signs of physical injury on her body, does not negate the commission of
rape.[6]
Force, as an element of the crime of rape, need not be irresistible force; all
that is required is that force was successfully used. In People v. Sarile,[7]
the Court explained:
“Nor is the credibility that attaches to complainant’s narration
weakened by the assertion of the inadequacy of the force exerted on her. In another early decision, United States v. Villarosa (4 Phil. 434), promulgated in 1905, this Court,
through Justice Torres, held: ‘It is a
doctrine well established by the courts that in order to consider the existence
of the crime of rape it is not necessary that the force employed in accomÂplishing
it be so great or of such character as could not be resisted; it is only
necessary that the force used by the guilty party be sufficient to consummate
the purpose which he had in view. (Judgment May 4, 1878, Supreme Court of Spain.)’. There is
this similar ruling in People v. Momo (56 Phil.86
[1931]): ‘It need not be
irresistible; ‘it need but be present, and so long as it brings about the
desired result, all consideration of whether it was more or less irresistible
is beside the point.’ x x x”
(Underscoring supplied)
The defense then presented a long story the point of which was
that Milagros, far from having been raped by the accused, had been in love with
him and had seduced him on that noon of 2 September 1980 and had left the house
crying because the accused had advised her to leave the house. This involved story was summed up in the
trial court’s decision in these terms:
“On the side of the defense Julio Deoneda,
Hilda Dioneda, Milagros Dioquino
Morato and the accused Francisco Tumalad,
testified. The evidence shows that x x x several months before the
alleged incident the accused had observed that the offended party was falling
in love with him. In spite of her
classes in school the offended party comes home any time in the morning and afternoon. When the offended party arrives home, she
sits beside him and embraces him.
Sometimes she takes a bath and wears seductive dress. The accused had to remind the offended party
to refrain from these acts as she was already grown up. Accused informed his common-law wife about
the behavior of her ward. At first Hilda
refused to believe his story so the accused instructed Hilda not to go to work
and observe her ward’s behavior. Around 9:00 o’clock in the morning, while Hilda was
bathing, they observed Milagros approaching their house but sensing that Hilda
was in the house, refrained from entering and went back to school. Convinced that Milagros was infatuated with
the accused, Hilda told her father, Julio Dioneda, to
take Milagros as boarder or allow her to eat lunch with him to avoid any
compromising situation with the accused.
Milagros, as instructed, stayed with her grandÂfather for a week, thereafter, returned to
the house of the accused. Upon Milagros’
return Hilda told Milagros that she (Hilda) will stop spending for her
(Milagros) schooling. On September 2, 1980 around 2:00 p.m., while the accused was resting in bed
Milagros entered the bedroom, sat on the bed and told the accused of her
problem, that her aunt would stop supporting her studies. The accused answered that he was in no
position to help her as he was jobless.
Hearing the answer Milagros cried and moved closer towards the accused
until her breast was touching his body.
Reacting, he embraced Milagros.
They found themselves lying together, embracing, kissing and romancing
each other. The accused raised her skirt
and pulled down her panty. He was
fingering the girl’s organ while the offended party was also holding his organ. Still lying side by side, and fingering the
girl’s organ, the accused masturbated.
In masturbating the turgid male organ was touching the vagina until the
moment of ejaculation. At the
involuntary moment of ejaculation the penis was touching the lips of the vagina
and the sperm covered the vagina and the girl’s abdomen. However, the accused categoricalÂly denied
that his penis penetrated the vagina.
After the torrid romance the accused said, ‘You see what happened to
us’. He told her that she better leave
the house because what happened will always happen. Rebuked Milagros cried. Then someone appeared at the store. The accused stood up and attended to the
customer. He saw Milagros crying and
walking out of the house. Later the
father of Milagros arrived and
confronted the accused what he did to his daughter. When the accused denied doing wrong, the father left their house. The grandfather, the common-law wife of the
accused, the aunt and the schoolteacher of the victim corroborated the defense
version of the incident.
x x
x x
x x x x x“[8]
The story woven by the accused with all the artfulness and
imagination of a cheap paperback did not persuade the trial court. Upon the one hand, Francisco’s story appeared
contrived and implausible to the trial court.
Upon the other hand, the trial court found the testimony of complainant
Milagros Dioneda to be straightforward, “firm
and categorical” and obviously worthy of credence:
“In rape cases, the offended party’s testimony must be subject
to a thorough scrutiny. The reason is
that crimes against chastity by their very nature usually involve only two
persons, the complainant and the accused.
The Court examined with greatest care the complainant’s story and
subjected it to a thorough scrutiny to determine its veracity in the light of
human nature and experience. The Court
does not find any flaw in the testimony of the complainant. The testimony, so firm and categorical, does
not give rise to any doubt. She narrated
clearly and concisely the harrowing events that befall her in the afternoon of September 2, 1980 in the bedroom of
their dwelling house. She did not lose
time in reporting the untoward incident to her father and seeking justice and
retribution.”[9]
Milagros Dioneda expressly and
repeatedly denied the tale told by the accused and stood firm under cross?examination. She testified thus —
Q: Milagros, Francisco
Tumalad here testified that before the incident took
place in unexpected hour 9:00 o’clock
in the morning while he was seated in the sofa, you would sit by his side, what
have you to say about that?
A: Well,
that is not true, sir, that
is only a concoction because he wanted to cover up his bestial act.
Q: Also
the accused testified that whenever you take a bath you always wear sheer
dresses and then you would come with him and embrace him, what have you to say about
that?
A: How could I do that because whenever I
took a bath, after I took a bath it was already time to go to School, how could
I do that when there is no more time for me to go near him because it is
already time for me to go to school.
Q: Okay,
also the accused testified to the effect that you were asked to leave his house
and you were told to transfer to the house of your grandfather because
according to him he want to avoid your advances, what have you to say about
this?
ATTY. LABITAG:
Objection on the ground
that it was already an evidence during the direct and
cross of this particular witness.
ATTY. RUBIO:
With that manifestation
I would withdraw my question, it would be redundant, of course, we are ready on the basis of the manifestation. I will propound another question.
Q: In connection with the rape case, the
accused testified that while he was in bed you entered the room and that you
took a seat beside him on the bed, what have you to say about that?
A: Well,
that is not true sir, that is only concoction in order
to hide his bestial actuation or acts.
Q: Also he testified that in that situation you embraced him and cried because you
have a problem and place your breast on him over his body?
A: That
is not true, that is only his concoction in order to hide his bestial act.
Q: The accused here testified that his penis was
not able to penetrate your sexual organ and that his organ ejaculated just
outside the lips of your vagina, what do you have to say about that?
A: Well,
the truth and in fact really his penis penetrated and entered my vagina and as
a matter of fact there is a medical certificate to support it.
ATTY. RUBIO:
For the record I would
request to place on record the fact that the witness cried on the stand.
INTERPRETER:
The witness when
answering the question she is crying.
ATTY. RUBIO:
That would be all no
further question.
CROSS-EXAMINATION
BY ATTY. LABITAG:
Q: Miss Witness you testified that you could
not have possibly sat on some occasion prior to the incident beside this accused
because you usually go to class
after taking a bath, did I get you right?
A: Yes,
sir.
Q: How
about on Saturdays and Sundays as well as in public holidays, do you usually go
to classes?
A: No,
sir.”[10]
In the effort to
strengthen the story of the accused, the defense presented Hilda Dioneda, the common-law wife of the accused Francisco Tumalad and aunt of the complainant Milagros Dioneda. Hilda
testified that the accused had told her that Milagros was infatuated with him,
that Milagros would sometimes come home unexpectedly, complaining of a
headache; that according to Francisco, when Milagros would come home during
school hours, she would “cream up”, take a bath and
“spray perfume” and put on
“sheer dresses”. The testimony
of Hilda Dioneda cannot, however, be given
substantial weight. In the first place,
that testimony was basically hearsay in character, expressly based upon what
the accused Francisco Tumalad had conveyed to
Hilda. In the second place, Hilda
had expressly admitted that Francisco was her common-law companion and that she
had hated her niece Milagros. She thus
had a powerful motive to try and exculpate Francisco at the expense of her
15-year old niece.
The defense also presented Julio Dioneda,
grandfather of Milagros and father of Hilda Dioneda. He testified in this manner:
Q: Now,
sometime in the first week of August, 1980, do you remember whether you have an occasion when you talk with
your daughter, Hilda.
A: Yes, sir, we had a talk.
Q: Where?
A: At
my house.
Q: Do
you know the reason why she went to your house at the first week of August,
1980?
A: Yes,
sir.
Q: What
was the reason?
A: According to Hilda, “Father, you
include Milagros in the preparation of the food for lunch because I told her
that she should take her lunch here at your house.”
Q: Did
she tell you the reason why she wanted Milagros to take her lunch with you?
A: Because
Francisco is alone at home and Milagros is also alone with Francisco.
Q: And
what did you do because of that request of your daughter Hilda?
A: I
accept it.
Q: And
so, did you prepare lunch that day for Milagros?
A: Yes,
sir, I prepared.
Q: Did
she take her lunch with you?
A: She
did not go to my house.
Q: And
did you have occasion to see Milagros the following day?
A: Yes,
sir, I saw her because Milagros got flowers.
Q: Where
did she get flowers?
A: At
my house.
Q: And
what did you tell her regarding the request of Hilda that she should take her
lunch at your house?
A: I
accepted but Milagros told me not to worry about her because she is already
grown-up.
Q: And
after that day or rather the subsequent days, did she take her lunch at your
house?
A: No,
sir.
Q: Do
you know where she was taking her lunch everyday thereafter?
A: She
was taking her lunch at the house of Hilda.”[11]
(Underscoring supplied)
We note that Julio Dioneda’s
testimony does not in any way corroborate the story of Francisco Tumalad that Milagros was in love with him. Indeed, the testimony of Julio could very
well be understood as meaning
simply that Francisco should not be given an opportunity to take advantage of
the 15-year old Milagros, and that, according to Milagros, she was a grown-up
and hence not afraid of Francisco.
The accused’s complex story included
the contention that there had been no sexual intercourse at all between him and
Milagros that early afternoon of 2
September 1980. In his
Brief, the accused argued that if he, Francisco, had indeed forced himself upon
Milagros, the latter would have suffered multiple
lacerations in her genitalia.[12] The accused’s
boasting is at once perplexing and thoroughly unpersuasive here. The medical examination of Milagros had shown
the presence of a fresh laceration in her hymen. That was certainly more
than sufficient to show that penetration of the vagina had occurred, and that
the crime of rape was consummated.
Jurisprudence tells us in fact that laceration of the hymen is not
necessary to prove the consummation of the crime of rape;[13] that an accused may be held guilty of rape regardless of whether
there was any laceration of the hymen or not.
It is also settled doctrine that full penetration of the vagina is not
constitutive of rape, and that the slightest penetration — without the hymen
being reached and lacerated at all — is sufficient to consummate the crime.[14]
The appellant sought to
make much of supposed inconsistÂencies in the testimony of Milagros, i.e.,
whether the accused had kissed and fondled her before or after the sexual
intercourse; whether the accused had pulled down her undergarment with his left
or with his right hand; and when precisely did she discover that she was
bleeding. The Court considers that such
inconsistencies — if inconsistencies they were — are too insubstantial
and trivial to adversely affect the credibility of Milagros’ testimony.[15]
The accused challenged as crude and unreliable the procedure used
by Dr. Jaime Co in conducting the medical examination of Milagros. This challenge has no merit. We agree with the Solicitor General’s
response to it:
“Appellant is not a medical expert, as to validly question the
medical procedure applied by Dr. Co in conducting the medical examination of
private complainant.
If indeed he was doubtful of the reliability and veracity of Dr. Co’s adopted procedure and finding, appellant should have
presented another medical expert to refute the same and cause the striking out
of Dr. Co’s testimony. Surely, his gratuitous and layman’s
observation and conclusions cannot prevail over Dr. Co’s
expert medical opinions on the matter.
More so, since there is no showing that Dr. Co deviated from the normal
medical procedure or otherwise falsified the results of the medical examination
conducted on private complainant.”[16]
Thus, in the end, this Court has neither the basis nor the
inclination to overturn the conclusion of the trial court that Francisco Tumalad was guilty beyond reasonable doubt of the crime of
rape.
WHEREFORE, the Decision of the Regional Trial Court dated 31 August 1987 is hereby
AFFIRMED. In accordance with prevailing
jurisprudence,[17]
the amount of damages due to
complainant Milagros Dioneda should be, and is
hereby, INCREASED to P30,000.00. Costs against appellant.
SO ORDERED.
Fernan, C.J., (Chairman), Gutierrez,
Jr., and Cortes, JJ.,
concur.
Bidin, J., on leave.
[1]
Rollo, p. 13.
[2]
Id., pp. 28-33.
[3]
Id., p. 44.
[4]
Id., pp. 28-29.
[5]
Id., p. 30.
[6]
People v. Alcantara, 126
SCRA 425 (1983); People v. Manzano, 118 SCRA
706 (1982).
[7]
71 SCRA 593 (1976).
[8]
Rollo, pp. 30-31.
[9]
Rollo, p.
31.
[10]
TSN, 11 June 1987, pp. 224-227; underscoring supplied.
[11]
TSN, 26 September 1984, pp.
153-154.
[12]
Appellant’s Brief, pp. 16-17.
[13]
People v. Abonada, 169 SCRA 530 (1989); People v. Sato, 163
SCRA 602 (1988); People v. Hernandez, 49 Phil. 980 (1925).
[14]
People v. Rebancos, 172 SCRA 425 (1989); People v. Budol, 143 SCRA 241 (1986); People v. Ytac, 95 SCRA 644 (1980).
[15]
People v. Bautista, 142 SCRA 549 (1986); People v. Ibal, 143 SCRA 317 (1986); People v. Senon, Jr., 121 SCRA 141 (1983).
[16]
Brief for Plaintiff-Appellee, pp. 29-30; Rollo, pp.
125-126.
[17]
People v. Estebal, 173 SCRA
209 (1989); People v. Villanueva, 162 SCRA 257 (1988); People v. Viray, G.R. No. 41085, 8 August 1988;
People v. Paragoso, 166 SCRA 408 (1988).