THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NESTOR TAN Y JASMIN, DEFENDANT-APPELLANT.

This petition is an appeal
from the decision of the Regional Trial Court of Manila, Branch 8, the dispositive portion of which reads:

“WHEREFORE, in view of the foregoing, the Court finds accused
Nestor Tan Y Jasmin residing at 470
San Rafael St., San Miguel, Manila, GUILTY beyond reasonable
doubt of the crime of Rape as
defined and penalized by Art. 335, par. 2, Rev. Penal Code, and hereby
sentences him to suffer an imprisonment of RECLUSION PERPETUA with the
accessory penalties of the law (or civil interdiction for life or during the period of the sentence as
the case may be), and that of
perpetual absolute disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall have been expressly
remitted in the pardon, in accordance with Art. 40 (should be Article 41)
R.P.C.; to pay complainant Jesusita Oquendo the sum of P30,000.00 as civil indemnity plus the reasonable sum of P10,000.00
as attorney’s fees and litigation expenses without subsidiary imprisonment in
case of insolvency; finally, the costs of suit.

Considering the gravity of the penalty imposed, it is further
ordered that accused be confined at the National Penitentiary in Muntinglupa, Rizal, upon finality
of this decision.” (At p. 66, Rollo)

In Criminal Case No. 83-22092,
the complaint filed against the accused alleged:

“That on or about November 3, 1983, in the City of Manila,
Philippines, the said accused did then and there willfully, unlawfully and
feloniously have sexual intercourse with the undersigned complainant, an
unmarried girl, while she was under the influence of drug, deprived of reason,
or otherwise unconscious, and against her will.” (At p. 7, Rollo)

The prosecution evidence
upon which the trial court based its finding of guilt beyond reasonable doubt
is summarized in the People’s Brief as follows:

“At about 4 o’clock
in the afternoon of November 3, 1983,
the offended party, a B.S. Nutrition graduate and
employed as a baker at the San Beda College, had a
snack of ‘palabok‘, and sat alone on one of the tables
of the school canteen (July 2, 1985, tsn., pp. 5,
10-15; November 4, 1985, tsn., pp. 8-10).  After eating a few spoonfuls of ‘palabok‘, she stood up and went inside the canteen to buy
coke (July 2, 1985, tsn., p. 15).  When she returned to her table, she saw
appellant, a stockman of the canteen, sitting on the side of the table (Ibid.,
p. 16). 
Appellant was ignored by the offended party but continued to sit
on her table while she ate (Ibid., pp.17-18).  Without finishing the dish, she got up and
left to meet a relative
somewhere outside the campus (Ibid.,
p. 18).

“While she was walking towards the gate of the college, she
became dizzy and felt as if she was ‘floating’ (Ibid.).  She tried to ignore the dizziness and
continued walking towards Mendiola
Bridge (Ibid., p. 19).  Suddenly, she felt appellant holding her
upper right arm (Ibid., p. 19). 
Since appellant had been known to her for more than one year, and since
he was the immediate person seen by offended party, she trustingly requested
him to bring her to her residence for she already felt very dizzy and sleepy (Ibid., pp. 19-23).

“The next thing she could remember was finding herself bleeding inside a small room with her skirt taken
off (Ibid., pp. 24-25).  Surprised
why she was in that condition, she immediately stood up, but then, because of
her dizziness, she fell down (Ibid., p. 26).  Soon, the door opened and appellant came in (Ibid.,
p. 27).  He helped her put on her skirt
and assisted her out of the room (Ibid., pp. 27-28).

“Still feeling very weak, she was brought by appellant to the Tanduay Fire Station at Legarda
St., but she could not recollect, however, by what means she was brought there
(Ibid., pp. 28-29).

“At about eight o’clock in the evening Fireman Rodolfo Acosta
of the Tanduay Fire Station was notified of the
presence of two people under the mango tree near the fire station (March 25,
1986, tsn., pp. 27-28, 30).  He approached both of them, who turned out to
be appellant and the offended party (Ibid.,).  He saw that the woman was bleeding and there
was a pool of blood on the spot where she stood (Ibid.,
p.28).  He noticed that the offended
party was very weak and could neither walk nor talk (Ibid., p. 31).  He ushered both the appellant and the
offended party to his office, and since blood continued dripping from between
her legs, two wives of his co-firemen brought the offended party to the toilet
and helped her clean up (Ibid., pp. 32-33).  While inside the toilet, one of the women
assisting the offended party shouted that the latter should be rushed to the
hospital (Ibid., pp. 34-35). 
Immediately, Firemen Acosta wrapped the offended party with a fireman’s
coat and brought her to the De Ocampo Hospital (Ibid.,
p. 35).  As she could not walk, she was
placed on a stretcher and brought to the emergency room (Ibid., p.
36).  Appellant, who appeared very
restless and apprehensive, accompanied the fireman and the offended party to
the hospital (Ibid., pp. 36- 37).

“The offended party was attended to by Dr. Crisanto
Reyes of the De Ocampo Hospital (July 28, 1986, tsn., p. 3).  The
Record of Operation was signed by Dr. Crisanto Reyes,
who diagnosed that the laceration was caused after an intercourse and that the
extent of the laceration required suturing in order to stop the bleeding (Exh. “F”; Ibid.,
p. 3-5).

“The offended party was discharged from the hospital on November 6, 1983 and the next day,
November 7 (should be November 10) she went to the NBI to report the incident
of November 3, (November 4, 1985, tsn., pp. 34­-35).  She was likewise investigated by the police
authorities (July 2, 1985, tsn., pp.
52-55; Exh.
“D”).  On November 10, she was
examined by the NBI Medico-Legal Officer, Noel B. Minay
(Ibid., p. 35).

“Dr. Minay conducted physical and
internal examination on the offended party for any sign of laceration on her genetalia (January 16, 1984, tsn.,
pp. 9-19).  The examination was reduced
into writing (Living Case No. MG-83-733; Exh.
“A”; Ibid., pp. 16?17).  The conclusions in his final report read ‘genital findings compatible with
sexual intercourse with man on or about the alleged date of commission’,
meaning, ‘that the hymenal lacerations are compatible
with the insertion of a penis by man’ (Exh.
“B”; Ibid., pp. 36-37).  The report further stated that ‘there were
three lacerations on the hymen of the subject which were deep-healing and
located at 6:00, 9:00 and 11:00 o’clock
(Ibid., p. 40).  He found the
portion of the vagina where the labia minora
and labia mejora meet swollen on the
posterior part of the vestibule, which is the orifice at the end of the
opening, and the vestibule itself was also swollen and congested (Ibid.,
pp. 38-40).  He likewise found that the rugosities were prominent, which means that the offended
party may not have had any previous sexual intercourse or had not yet given
birth (Ibid., 40).  He concluded
that the breakage of the hymen of the offended party in the three places
indicated that she was forcibly violated (Ibid., pp. 48-49).” (At
pp. 4-9, Appellee’s brief)

The version of the
defense summarized in the appellant’s brief is as follows:

“Antonio Balantucas testified that
the complainant and the accused were his co-employees at the San Beda College Canteen. 
The complainant was the baker while the accused was the stockman.  The complainant started working at the
canteen since 1981.  The accused started
working at the canteen since 1981.  The
accused started working ahead of him.  At
the start, the complainant and the accused were just friends.  Later, the complainant was introduced to him
by the accused as his (accused) girlfriend. 
The complainant at the time just smiled. 
The complainant and the accused were sweet with each other as sometimes
during their snack, they halve the cake. 
It was only the accused who told him that the complainant is his
girlfriend even tapping the shoulder of the complainant who just smiled.  On November
3, 1983, he was on leave.  He
was on leave even before November 3,
1983, (TSN., pp. 6-18, April 7, 1987)

“Accused Nestor Tan testified that he knows the complainant
because she was his co-employee at the canteen. 
The complainant joined the canteen in the middle of 1981.  They were sweethearts until that night when
he brought her to the hospital on November
3, 1983.  He courted the
complainant in August 1982 until she accepted him.  The acceptance was made inside the stockroom
because they belong to the same room.  On
November 3, 1983, at about 4:00 o’clock p.m., the complainant came to his
table and apologized because their date the previous day did not
materialize.  However, he told the
complainant that they will proceed that day. 
He asked the complainant to wait for him because her off-duty was at 3:30 p.m. while his was at 4:00 p.m.  After
punching out his card, he proceeded to the corner of Mendiola Street and Legarda Street where the
complainant was waiting.  As they have no
definite plan about their date, they ended up at Victoria
Inn.  It is located in Quiapo,
Manila.  At the said place, they had their first
sexual intercourse on October 27,
1983.  They arrived in Victoria
Inn at around 4:30 p.m.  They paid
the teller the amount of P24.00 (for short time) and were handed the key for
Rm. 307 at the 3rd floor.

“Inside the room, they embraced and kissed each other.  While they were kissing, the complainant
unbuttoned his shirt slowly and loosened his pants.  He took off his pants and in turn he took off
the complainant’s blouse and skirt (uniform). 
They caressed each other and when they were already aroused, they had
sexual intercourse.  Thereafter, the
complainant took a shower and he lighted a cigarette while waiting for the
complainant to finish her shower.  After
3 or 5 minutes and the complainant had not come out, he called her.  The complainant replied, ‘Sandali
na lang‘.  He pushed the bathroom door and peeped
inside.  He saw blood coming from the
complainant’s waist going towards her feet. 
The complainant was naked and standing under the shower.  The blood was coming out from her private
part.  He asked, ‘Susette
why are you bleeding’, she replied, ‘None, don’t
worry.  This is just nervousness’.  The complainant went out the bathroom and put
on her panties.  But the complainant was
still bleeding.

“He was asked by the complainant to get toilet paper which she
placed on her vagina to stop the bleeding. 
Because the panty of the complainant was already wet with blood, he was
asked to buy a panty outside.  After
buying the panty, he went back to their room. 
He then reminded the complainant that there was only 30 minutes
remaining on their time.  They went out
of their room and they walked along Paterno and
Evangelista Streets going towards Plaza Miranda.  They passed through the underpass and he
suggested to her that they take a ride but the complainant opted to walk up to
her cousin’s place at P. Casal
Street, Tanduay near the
Avanceña High
School. 
They were not able to reach the place because there was blood flowing
down to her legs.

“When they reach the fire station infront
of the National Teachers
College building, the complainant asked if he
could bring her to his house.  He replied
he cannot because his live-in was there. 
The complainant asked, ‘where will I clean myself.’ He told the
complainant they will seek help from the fireman.  The fireman agreed to help them provided
there will be an investigation first. 
Hence, the officer-in-charge, Cpl. Rodolfo Pablo Acosta was called.  They were asked about their relationship.  The complainant replied, ‘This is nothing,
there is no problem here because we are husband and wife.’ They were permitted
to go to the bathroom to clean the blood on the legs of the complainant.  While the complainant was inside the
bathroom, he was called by the officer-in-charge who asked him why his wife was
bleeding.  He told the officer-in-charge
that they came ‘from the hotel and he did not know why’.  Then he was called by the complainant asking
him to get a panty and a skirt.  He went
to his house and saw Jaime Sandoval.  He
asked the latter, ‘Abing, if you have extra skirt,
because in our house, the skirt of my wife is counted.  He was given a skirt of the sister of
Sandoval and he got a panty of his wife. 
He returned to the fire station with Abing
(Sandoval) and gave the panty and skirt to the wife of the fireman who assisted
the complainant.  Because the complainant
was continuously bleeding, it was suggested that she be brought to the
hospital.

They boarded the service jeep of the station and brought the
complainant to the hospital.  At the
hospital, the complainant signed the document ‘Consent of Operation’ of Jesusa Tan.  She also
gave the name Jesusa Tan.  Also, she furnished the name ‘Mrs. Jesusita Oquendo Tan appearing in
the Patient’s Admittance Record as well as the name ‘Nestor Tan’ after the
words ‘Responsible or Nearest Relatives.’

“On the same night, at about 10:00
p.m., while the complainant was still in the operating room, he
went home and talked to his wife.  His
wife was so mad and wanted to stab him when told about what happened to the
complainant.  After his wife had calmed
down, his wife and Abing Sandoval went to the house
of the complainant.  Upon arrival
thereat, he requested his wife and Abing Sandoval to
stay at the gate.  Inside the house was Muning.  The latter
asked what happened and he told the latter that the complainant was bleeding,
and, in fact, was in the hospital.  He
then told his wife and Abing then waiting at the gate
to go home because he will accompany Muning and her
companions to the hospital.  At the
hospital, they were told that the complainant was already in the room.  As the complainant was already conscious, she
and Muning conversed. 
He smoked outside the room, and, after a while, Muning
called and told him, ‘Nestor pakasalan mo ang pinsan ko’.  Because its already
getting late, he replied, ‘If Susette has fully
recovered, we will take this matter’.  He
did not talk with the complainant when he was told by Muning
about the marriage.  He went home after
leaving the hospital.

“The next day, November 4, he got a cash advance in the amount
of P900.00 from San Beda Canteen.  In going to the hospital he brought along
Ramon dela Torre and paid
P600.00 as deposit.  He proceeded to the
room of the complainant.  He approached
her, held and embraced her saying, ‘Susette, how are
you’.  He was answered, ‘I am a little
bit fine’.  Then, the complainant told
him, ‘Nestor, I want you to marry me’. 
He reminded the complainant that it cannot be because he and his wife
(Linda) will be included in the mass wedding that will be held at San Beda.

“The complainant pleaded for pity because her honor is at
stake.  The complainant was crying and he
caressed her.  After office hours, at
about 4:00 p.m., he went to the
hospital with his wife (Linda).  His wife
and the complainant were able to talk. 
He was told by his wife that Susette was
asking that he choose between the two of them. 
He did not answer the complainant and she told the latter that she can
leave the hospital the next day.

“On November 6, 1983,
together with Ramon dela Torre,
he went to the hospital and paid the hospital bills.  He went to the room of the complainant and
told the latter that the hospital bills were settled.  He did not get any answer from the complainant.  After paying the hospital bills, he never
returned to the hospital, hence, he does not know when the complainant left the
hospital.

“He was summoned at the Office of the Father Rector.  He denied the allegations of the complainant
that he drugged her.  After which, the
Father Rector indorsed the matter to Atty. Flores for investigation.  On November
9, 1983, he was told that he will be suspended from work
indefinitely.  He was given his
termination paper before he was apprehended on November 15, 1983. 
(TSN., pp. 3-20, May 18, 1987; TSN., pp. 3-19, October 27, 1987; TSN.,
pp 3-27, November 24, 1987; TSN, pp. 2-47, December 14, 1987; TSN., pp. 4-21,
January 26, 1988; TSN, pp. 2-71, February 16, 1988; TSN., pp. 3-25, March 15,
1988; TSN., pp. 6-24, April 4, 1988)” (At pp. 8-13, Appellant’s brief)

The accused raises the
following assignment of errors in his appeal, to wit:

I

“THE TRIAL COURT ERRED IN CONCLUDING
THAT THE PRIVATE COMPLAINANT WAS RAPED WHILE UNDER THE INFLUENCE OF DRUG
DESPITE ABSENCE OF EVIDENCE TO SUPPORT SUCH CONCLUSION.”

II

“THE TRIAL COURT ERRED IN HOLDING THAT
THE GUILT OF THE ACCUSED WAS PROVEN BEYOND REASONABLE DOUBT.” (At p.1,
Appellant’s brief)

Article 335 of the
Revised Penal Code defines the crime of rape and provides for its
penalty.  The elements of rape pertinent to this case are:  (1) that the offender had carnal knowledge of
a woman and (2) that the woman is deprived of reason or otherwise unconscious.

The appellant admits to
having carnal knowledge of the complainant but alleges that the complainant agreed
to it as they were sweethearts.

The two assigned errors
center on the credibility of the witnesses.

The appellant impugns the
testimony of the complainant.  He
states that as against his testimony, that of the complainant’s is contrary to
human experience.  He questions the
following circumstances:  (1) the complainant had a sharp memory
recalling the time she was having a snack to the time she was walking Mendiola Bridge, the time she found herself inside the
motel room with the accused and the name of the fireman who helped her but she
could not remember how she found herself inside the motel room (2) if it were
true that the complainant was drugged, then the appellant could have easily
abandoned the complainant instead of accompanying her (3) the failure of the
complainant to resist, fight, or shout for help when she came to her senses (4)
the failure of the complainant to denounce the appellant during her stay at the
hospital (5) the medical record did not show in certain terms that the
complainant was drugged.

These contentions are
devoid of merit.

The time of the loss of the complainant’s memory is consistent
with the time when the drugs took effect on her.  It is understandable that the complainant
could not recall how she got to the motel room as she started to feel dizzy and
drowsy while walking towards the Mendiola
Bridge.  The last thing that she could remember prior
to finding herself bleeding in a small room was her requesting the appellant whom she saw following her to bring her
home.  (TSN, July 2,
1985, pp. 23-25).

The complainant’s failure to resist, fight, or shout for help can
be explained by the fact that she was still feeling very weak from the after effects of the drug and
from the profuse flow of blood due to the lacerations.  Her testimony is substantiated by Rodolfo
Acosta, the fireman who is a third party to both the appellant and the
complainant, who observed that the complainant looked very weak and could not
even walk nor talk.  (TSN, March 25,
1986, p. 31)

Knowing that the complainant was very weak, the appellant opted
to remove the complainant from the motel since there might have been someone
who could have linked them together.  If
the appellant was really sincere in helping the complainant, he would have at
once rushed the complainant to the hospital since he saw that the complainant
was continuously bleeding.

Although the medical record did not show that the complainant was
drugged as she was not checked for such, during the investigation by Pablito Marasigan, a police
investigator of the Western Police District, he discovered that the complainant was admitted to the hospital for sexual
abuse.  (TSN, November 12, 1984, pp.
18-19) The complainant was even asked by the doctor who treated her how many
persons perpetrated the act.  (TSN, July 2,
1985, p. 41) At the time that the
complainant was asked, she was still confused as to what exactly happened
to her.  (TSN, July 2, 1985, p. 42)

The testimony of the complainant is also corroborated by the
National Bureau of Investigation (NBI) medico-legal officer who is likewise a
third party to both the complainant and the appellant.

The NBI medico-legal officer confirmed that the complainant was a
virgin.  (TSN, January
16, 1984, p. 42) and that there was,
indeed, forcible violation.  (TSN, August 7, 1984, p. 51)

The appellant on the other hand, maintains that the bleeding
brought about by the lacerations in the vagina could have been possible even if
there was mutual consent.  He cites the
testimony of Dr. de Ocampo, to wit:

“COURT:

Doctor,
could that extent of laceration on the victim’s vagina come about even after
coitus or sexual intercourse had been undertaken by mutual consent between the
participating parties and assuming that the woman had already experience of
intercourse previously?

A     Yes,
sometimes it may occur again.

Q    And
under what circumstances may bleeding ensue?

A     Sometimes, let us say there is a
contraction on the woman and any
contraction will find hardness in inception of the penis or any object, Your Honor.

Q    And
assuming that the woman had
undergone coitus for the first time, will this injury come about, meaning to
say that she never had prior coitus with any man, could this kind of
relationship come about?

A     Precisely, because you know when there is any contraction or in the
uterus there will be very dry especially
when there is no lubrication, if there
is no contraction, inception will be fairly easy and when there is
contraction, there is no fluid in there and that will cause laceration.

Q    In this instant or in the case of the
woman who had never had prior sexual intercourse, with that of a
coitus with a woman who had previous experiences and under mutual consent and the relationship of the latter
circumstance as against the former to the extent of that relation as found by
Dr. Reyes?

A     Because,
Your Honor, even if the woman is virgin and one is not she can
experience it sometimes, if the woman is virgin there will be no bleeding
provided the inception is done with the secretion fluid.

Q    But
in this particular case, we are faced with
a victim who had a big laceration or injury
as found, is it not true, Doctor, as an expert that this laceration came about
because the victim had never had
any prior coitus experience?

A     It is very hard to tell, Your Honor,
because whether she had previous experience or not if there was contraction during that time and it
was done in a hurried way, then
precisely it will cause laceration also.” (TSN, pp. 8-9, July 28, 1986)
(At pp. 20-21, Appellant’s brief)

It is very clear from Dr. de Ocampo’s testimony that for the
appellant’s theory to survive there must be contraction and the coitus must be
done in a hurried way.

This is contradicted by
the appellant’s own testimony. 
According to the appellant, they (the appellant and the complainant)
leisurely caressed, embraced and kissed
each other.  The appellant even asked
permission from the complainant if he could insert his penis.  (TSN, November 24, 1987, pp. 7-9) This shows that the coitus was not done in a hurried
way.  Also, there would have been enough
lubrication as not to cause such deep lacerations which even required two to
three stitches in order to stop the bleeding.

The
appellant’s main defense is that he and the complainant were sweethearts ever
since August 1982.  (TSN, May 18, 1987,
p. 18) Thus, there was mutual consent. 
In fact, he alleges that he and the complainant had their first
copulation on October 27, 1983
(TSN, October 27, 1987, p. 18) but this
allegation was rendered false by the medico-legal officer’s statement that the
complainant was a virgin.  Furthermore,
the appellant could not show any token or evidence in writing to prove that
such relationship existed.  For over a
year of going steady, the appellant could not show any love letters, pictures,
or token gifts from the complainant.

In  the testimony of Antonio Balantucas, the
complainant never admitted that she and the appellant were sweethearts.  His conclusion is based on the alleged
introduction by the appellant of the complainant as such.  (TSN, April 7, 1987, pp. 15-17)

Only Ramon dela Torre’s testimony supports the stand of the appellant that he and the
complainant were sweethearts.  However, there is a need for a little more
care in the appraisal of dela Torre’s
testimony as he is a good friend of the appellant.  (TSN, July 11, 1988, p. 40) Aside from the appellant’s self-serving
testimony there is nothing to support dela
Torre’s testimony. 
Moreover, Dela Torre’s
testimony about Jesusita’s
protestations of love for the appellant, her asking him to be their
“bridge”, and her desire that Tan give her a baby for her happiness
does not impress this Court as natural and credible.

We, therefore, affirm the
trial court’s finding that the appellant and the complainant are not sweethearts
and that the sexual intercourse was unwelcome and forcible.

The argument of the
appellant that Jesusita Oquendo
filed a complaint against him because of his refusal to marry her must fail.

The complainant was not
outraged by the fact that the appellant refused to marry her.  She was outraged because of the heinous act
that was done to her.  As aptly observed
by the trial court:

“Her face (Vide: 
picture marked Exh. C taken at the NBI, page
22, record) constantly confronted the Court with that appearance of candor and
candidness matched by her honest answers, and sincerely given, to questions
hurled at her about what was done to her by accused Nestor Tan.  The simplicity and quiet ways typical of a
Filipina molded in the Christian-upbringing values and culture, remained with her
even when in tears exclaiming ‘Wala Bang Katarungan!’ in remembering the shocking event – that of
having been ravished while devoid of will which brought so much torment, shame and degradation to
herself and perhaps her parents and other relatives.  Nonetheless, in so remembering, it did not
deter her in glare of public trial to tell all bare herself in her search for
justice.  This Court, therefore, is
convinced of her sincerity and credibility, as well as the veracity of her
narrations.” (At pp. 59-60, Rollo)

It is a well settled rule
that appellate courts will not generally disturb the factual findings of the
trial courts which are in a better position to weigh conflicting testimonies,
having heard the witnesses themselves and observed their deportment and manner
of testifying unless it is found that the trial courts have plainly overlooked
certain facts of substance and value
that, if considered, might affect the result of the case.  (People v. de Guia,
G.R. No. L-49825, May 14, 1990; People v. Alburo,
G.R. No. 85822, April 26, 1990) No such overlooking has been shown here.

The records sustain the
factual findings of the trial court and its assessment of the credibility of
witnesses.

WHEREFORE, the guilt of the accused having been proved
beyond reasonable doubt, the appealed decision is hereby AFFIRMED.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.