G.R. No. 84918. December 21, 1990
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ED FERNANDEZ AVILA, DEFENDANT-APPELLANT.
PADILLA, J.:
This is an appeal interposed by the defendant Ed Fernandez Avila
from the judgment*
rendered in Criminal Case No. 1548 of the Regional Trial Court at Malaybalay, Bukidnon finding him
guilty of the crime of Rape and
sentencing him to suffer the penalty of reclusion perpetua
and to indemnify the offended party in the amount of P50,000.00.
The facts of the case, according to the People’s counsel, are, as follows:
“Complainant Martina Subog was a
31-year old Manobo spinster, somewhat naive and
guileless, barely four feet and eleven inches in height and eighty pounds in weight on October 4, 1976 when she
claims to have been raped by accused Ed Fernandez Avila, a 23-year old dump
truck driver of the public highways and resident of Camp I, Maramag,
Bukidnon. At
the time, complainant was a public school teacher assigned at the Sinuda
Elementary School located in Kitaotao, Bukidnon and residing with Mr. and Mrs. Sotero
Roque in the latter’s house in Poblacion,
Maramag, Bukidnon (tsn, December 11, 1978, pp. 3, 4, 18; February 3, 1988, pp. 2-3).
According to complainant Martina Subog,
at about 9 o’clock in the evening of October 4, 1976, she was standing along
the National Highway in front of the house of Mr. and Mrs. Tulba
at Camp I, Maramag, Bukidnon,
waiting for a ride home to Poblacion of Maramag. She was
accompanied by her two co-teachers Mrs. Tulba and Mr.
Magno. (tsn, December 11, 1978, p. 5,
47-48). Soon after, they saw a vehicle
coming from Don Carlos and going towards Maramag. The vehicle was a government dump truck driven by
accused Ed Fernandez Avila. Mr. Magno flagged it down.
As the vehicle stopped, Mr. Magno with Martina
by his side, approached the vehicle and requested the driver (accused Avila)
to give Martina a ride to the Maramag town
proper. Accused acceded, saying ‘yes,
sir’, you let her ride’. (tsn, December 11,
1978, pp. 6, 8). Accused Avila
then resumed the travel. That being the first time the complainant and
the accused met each other, the accused introduced himself to her as
‘Eddie Avila’ and asked her name to which she obliged. (tsn, December 11, 1978, pp. 8-9).
When they were nearing Mr. Roque’s house
where complainant was residing, complainant asked the accused to stop the truck
(tsn, December
11, 1978, p. 9). The
accused, however, did not stop the truck and instead invited the complainant to
dine at the carinderia at the market place near the
Municipal Hall. Complainant declined the
invitation, saying ‘Never mind Dong, anyway it is already late and beside our
place is already near’. (tsn, December 11,
1978, p. 10). On hearing her
answer, the accused drove faster until they reached the carinderia
at the market place, located half-a-kilometer away from Mr. Roque’s
residence (tsn, December 11, 1978, p. 10). Upon alighting from the truck, complainant
told the accused: ‘Thank you Dong, I’ll
just hike to the house of Mr. Roque because it is
already near.’ The accused said: ‘Don’t
hike because you are only a woman and I’ll accompany you home later on’, and again invited
her to take supper. Hesitating, she
acceded. After taking supper, complainant thanked the accused, saying: ‘Thank you Dong, I will go ahead of you.’ The
accused replied: ‘Board on the truck and
I will bring you home‘. So, the complainant again boarded the
truck. The accused and one of his three
companions followed suit, leaving the other two at the market place. Then the accused started moving the truck
out. (tsn, December
11, 1978, pp.
10-12).
Upon reaching the crossing of Maramag and
Pangantucan, the accused suddenly turned the truck
toward Malaybalay, prompting the complaiÂnant to
inquire: ‘Dong, where is this truck
bound for’. The accused allayed her
apprehension by replying: ‘Just for a short time because I will get
something’. (tsn,
December 11, 1978, p.
12). After a while, they reached Panadtalan, Maramag, where the
accused swerved the truck toward the Pulangi River. Surprised, the complainant again asked the
accused where the truck was bound for and requested him to stop for her to
alight. The accused ignored her request
and kept on running fast until they
reached the bank of Pulangi River (tsn, December 11, 1978, pp. 13-14).
There, the accused momentarily stopped the truck to let his companion
alight therefrom and then drove to a dry land in the
middle of the river where the accused finally stopped the truck (tsn, December 11, 1978, pp. 14-15).
Upon stopping the truck, the accused alighted therefrom,
then approched the comÂplainant and started touching
her breasts (tsn, December 11, 1978, p. 15). She tried to evade the accused. As he still continued touching her, she bit
his arm (tsn, December 11, 1978, p. 15). This angered the accused who promptly covered
complainant’s mouth with his palm and threatened her: ‘You crazy Manobo, I will let you float on the river.‘ (tsn, December
11, 1978, pp.
15-16). Then the accused forcibly pulled
her down from the truck, causing her to fall down to the ground on her buttocks
(tsn, December 11, 1978, p. 16).
Thereafter, the accused pinned her down on the ground in a lying
position with his left knee pressing on her solar plexus and his hands on her
shoulders, then forcibly pulled her shirt up tearing it in the process and
covered with it her hands and face (tsn, December 11,
1978, pp. 16-17). By then, the
complainant was already weak and exhausted and her ribs aching as if they were
broke (sic) and was unable to move. (tsn, December 11, 1978, pp. 18-19).
The accused still pinning her down with one hand on her chest near the
neck, then with other hand held her two legs, pushed them upward on her face,
and then forcibly removed her trousers, panty and bra (tsn,
December 11, 1978, pp. 18-20).
Thereupon, the accused put himself on top of the complainant, and
tried inserting his penis into her vagina (tsn, December 11, 1978, pp. 19-20). The comÂplainant was too weak she could not
move anymore. The accused, thus,
succeeded in having carnal knowledge of her.
She felt pain inside her. (tsn, December 11,
1978, p. 21).
After consummating his bestial desires, the accused freed her and
stood up. Moments later when the
complainant regained her strength, she put on her bra, blouse and trousers (tsn, December 11,
1978, pp. 21-28).
Thereafter, she got back to the dump truck and was brought home by the
accused. (tsn,
December 11, 1978, pp.
30-33). Upon reaching home, complainant
immediately told her landlady, Mrs. Roque, that the
accused had raped her. Thereupon Mr. Roque summoned PC Sgt. Salvaña,
who was staying at Mr. Roque’s other house nearby, to
arrest the accused. Mr. Roque and Sgt. Salvaña brought
the accused to the police station of Maramag. (tsn, December 11, 1978, pp. 33-35).
Early in the morning of the following day, October 5, 1976, the complainant was examined by
Dr. Nemesio Gako at the Maramag Emergency
Hospital (tsn,
December 11, 1978, pp.
36-37; July 22, 1980, pp.
3-5). Dr. Gako
issued a medical certificate (Exhibit ‘F’, p. 10, Record) stating, among other
things, his findings, as follows:
‘x x x x
x x
P.E. = Breasts
hemispherical, bilaterÂally with no external injuries
noted.
= Pelvic exam.:
New hymenal
lacerations at 2 o’clock, 5 o’clock and 7
o’clock. Vagina admits one
finger with ease but with slight resistance with two fingers. Examining fingers with blood stains upon
withdrawal.
= Thighs, with scabies bilateral medial aspect.
= Buttocks, no signs of trauma or abrasions.
Microscopic = examination for sperms:
First slide = negative
Second slide =
Positive (one dead spermatozoa) some red blood cells seen in both slides.
x x x x x x’
After undergoing medical examination, complainant proceeded to the Maramag Police Station and filed a complaint against the
accused. His (sic) sworn statement was
taken by the police on the same day.
Afterwards, she filed a formal complaint with the Municipal Court of Maramag (Exhibit ‘E’, p. 2, Record) charging the accused of
the crime of rape committed against her.
(tsn, December
11, 1978, pp. 37-39).”[1]
The accused-appellant admitted having sexual intercourse with the
complainant in the evening of 4 October 1976. But he denied having raped her. He claimed that he and the complainant were
sweethearts and that the act was done freely and voluntarily. His version of the incident is as follows: At about 8:00 o’clock in the evening of 4
October 1976, he was
driving a government dump truck from Palakatao, Quezon, Bukidnon to the Panadtalan Quarry in Maramag, Bukidnon. His
companions in the truck were Vicente Empe, Jonas Kilem and Francisco Macarandan. Upon reaching Camp I, he saw two women and a
man standing on the highway, near the protestant church. He recognized one of the women as his
sweetheart, Martina Subog, the complainant herein, so
that he stopped the truck. The
complainant rode beside him in the front seat, together with his three (3)
companions. The two (2) companions of
the complainant were left behind.[2]
Upon reaching the house of Mr. Roque
where the complainant was boarding, he invited the complainant to take supper
with him. The complainant accepted the
invitation and they proceeded to the carinderia near
the Municipal Building of Maramag, Bukidnon.[3]
After taking supper, he asked the complainant if she would like
to go with him to the Panadtalan Quarry and the
complainant answered yes, if she would be brought back. The appellant agreed and they went to the
quarry. Upon reaching the quarry, his
three (3) male companions alighted from the truck and went to the camp, leaving
him and the complainant in the truck.
They then kissed, and after a while, he brought down a mat which he unfolded under the dump truck. They then laid down and had sexual intercourse. They had sexual intercourse twice that night,
after which the complainant rolled the mat and went aboard the truck. Then they went to complainant’s boarding
house.[4]
Upon reaching the house, they were met by Mrs. Roque who demanded
to know where they came from. The
complainant answered that they went to take supper at the carinderia. Mrs. Roque,
however, called her husband who came down with a pistol in his hand. Mr. Roque then
called a PC soldier who was
living in the house and together they brought him to the police station. He told the policemen at the police station
that he had not committed any offense.
But the policeman told him to just rest there. The next morning, the complainÂant arrived
and filed a complaint for Rape against him.[5]
Vicente Emya, a co-worker of the
accused, confirmed the appellant’s claim that the appellant and the complainant
were sweethearts saying that he saw the appellant embracing the complainant at the Panadtalan
quarry in Maramag, Bukidnon
on three (3) previous occasions.[6]
The decisive issue is whether or not, under the facts of the
case, the complainant and the appellant were lovers and that the complainant
had consented to have sexual intercourse with the appellant on the night of 4 October 1976.
The appellant contends that the complainant was his sweetheart at
the time of the sexual intercourse in question, and cited the following reasons
to bolster his claim:
(1) the complainant did not get angry
with him when he failed to stop in front of the complainant’s boarding house
and, instead, accepted his invitation to take supper at the carinderia;
(2) the complainant gave her watch and
umbrella to him while they were
eating;
(3) Vicente Emya
declared that he saw the appellant bring the complainant to the Quarry three
(3) times before the incident; and that
(4) the
complainant subsequently executed an affidavit of desistance.
The complainant, upon the other hand, vehemently denied that the
appellant was her sweetheart or that she had consented to have sexual
intercourse with him on the night in question.
She declared that the appellant was a complete stranger to her and that
she met the appellant for the first time on board the dump truck when the
appellant introduced himself to her.[7]
We find no merit in the appellant’s claim. His possession of the complainant’s watch and
umbrella is not sufficient to prove that they were sweethearts. The complainant had satisfactorily explained
the appellant’s possession of said
articles. She said that she gave her watch
to the appellant when the latter asked to see it while they were eating and
promised to return it after they had finished eating. The taking was seemingly innocent and the
complainant did not suspect that the appellant had base motives. Her testimony reads as follows:
“Q Do
you recall that when you were already in the process of eating the driver
herein took your ring?
A
He took my watch.
Q
He was the one in fact who got your
wrist watch from your right hand?
A No, Sir, I was the one who removed it.
COURT:
(Intervening)
Q
Do you mean to say that you gave your
wrist watch to him?
A I did not give, but because he told me, ‘May
I see your watch,’ so I removed my watch.
Q And
he kept that watch?
A Yes,
Sir.
Q He
did not return it to you?
A He
returned it. He told me, ‘I will return
this after supper. Let’s eat first.’
Q After
supper, did he return the watch to you?
A Not
yet.
Q Did
you not ask for it?
A I
asked for it.
Q What
did he say?
A He
told me, ‘By and by when we will go home.’
Q Are
you satisfied with his answer?
A No, Sir.
COURT:
Proceed.
ATTY. AQUINO: (Intervening)
Q Miss
Subog, since the accused was not even an old
acquaintance with you because that was your first time to see him and in the
second offense he committed on you by keeping your wrist watch, were you not
irritated?
A I
was irritated.
Q Specially
when he speeded the car instead of stopping you home to the house of Mr. Roque?
A Yes,
Sir.
Q Did
you not then maintain doubts on that particular occasion evil motives on the herein
accused when he did not return your wrist watch to you?
A I
did not have that in mind.
Q Even
as a teacher you did not have that suspect (sic) about the motives of the
accused by keeping your wrist watch?
A No,
Sir.”[8]
As for the umbrella, the complainant declared that when she
alighted from the dump truck, she gave her umbrella to the appellant when the
latter said: “I will be the one to
bring your umbrella as you alight.”[9]
Surely, the appellant’s possession of the wrist watch and umbrella of the complainant,
under the circumstances, cannot be considered a sign or proof that the
appellant and the complainant were sweethearts.
The affidavit of desistance,[10]
executed by the complainant on 19 November 1986, more than ten (10) years after the commission of the act complained
of, is also not a proof that the appellant and the complainant had been lovers,
for nothing is said therein that they had a previous love affair. What the complainant stated in her affidavit
is that she is no longer interested in having the accused prosecuted and put to
prison; and that she had already forgiven him.
The same affidavit of desistance will not also justify the
dismissal of the case as it was granted only after the institution of the
action.[11]
Pardon in crimes against chastity, to be effective, must come before the
institution of the criminal action.[12]
Besides, the appellant’s claim is belied by the fact (a) that the
complainant reported the assault on her to her landlady, Mrs. Roque, soon after their return to the house, so that the appellant was immediately brought
to the police station of Maramag, Bukidnon,
and (b) by the absence of motive on the part of complainant to perjure herself
and impute the commission of such heinous crime to an alleged sweetheart. Such conduct, according to the Court, in one
case,[13] ‘‘is hardly the conduct of a young woman who has just been transported
with ecstasy in the discovery of the pain and the sweetness and promise of a
portal that is opened to a tremblingly anticipated guest.”
Indeed, it is improbable for the complainant, a public school
teacher, to fabricate matters and thereby undergo the travails of a public
trial exposing herself to humiliation and embarrassment by unraveling nasty
matters against her virginity by lodging against her supposed sweetheart so
grave and serious a charge, if not true.[14]
Moreover, the testimony of the complainant on how she was
assaulted and ravished by the appellant is credible and we find nothing
disparate or improbable in it. Her testimony is corroborated by the medical
certificate which stated that the complainant, upon examination conducted on
the morning following the assault, sustained new hymenal
laceraÂtions and the examining fingers had blood stains upon withdrawal. The complainant had resisted the appellant
tenaciously in the manner she was capable of, but she could not overcome
the appellant, especially after the latter had threatened her saying: “You crazy Manobo,
I will let you float on the river.”[15]
The trial court, therefore, did not commit error in finding the
appellant guilty of the crime for which he was charged. However, the civil indemnity awarded to the
complainant should, in our considered view, be eliminated in the light of the
pardon extended by her to the appellant.
With the sole modification above-indicated, the judgment appealed
from is hereby AFFIRMED, with costs against the appellant.
SO ORDERED.
Melencio-Herrera, (Chairman), Paras, Sarmiento, and Regalado, JJ., concur.
*
Penned by Judge Ernesto M. Mendoza.
[1] Appellee’s Brief, pp. 3-10
[2] tsn of February 3, 1988, pp. 3-7
[3] Id.,
p. 8
[4] Id.,
pp. 10-14
[5] Id.,
pp. 15-17
[6] tsn of November 23, 1987, pp. 3-6
[7] tsn of December 11, 1978, pp. 8-9, 49-50
[8] Id.,
pp. 55-57
[9] Id.,
p. 58
[10]
Exhibit 1
[11] People vs. Lor, G.R. Nos. L-47440-42, September
12, 1984; 132 SCRA
41
[12] People vs. Miranda, 57 Phil. 274
[13]
People vs. Mancilla, G.R. No. 47628, May 15, 1989, 173 SCRA 373, 380-381
[14]
People vs. Nunag, G.R. No. 54445, May 12, 1989, 173 SCRA 274
[15] tsn of December
11, 1978, pp. 15-16