THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. VILLAMOR ACZON ALIAS “AMOR,” ACCUSED-APPELLANT.

Accused-appellant Villamor Aczon claims that he could not have
kidnapped and raped the complaining witness, Emily Miranda, as he was in jail
at the time the alleged kidnapping and rape took place. Nevertheless, the trial court found Aczon
guilty as charged and sentenced him to suffer the penalty of reclusion perpetua, to indemnify
the offended victim the sum of P25,000.00 and to pay the cost.^[1]
Aczon reiterates his alibi before us and asks us to acquit him. Meticulous examination of the records before
us reveals with moral certainty the guilt of Villamor Aczon for the crime charged. Accordingly, we affirm his conviction.

On December 26, 1987, Emily Miranda and her cousin, Jocelyn
Calderon, arrived at Roxas, Isabela at around 7:00 to 8:00 P.M. for a
connecting trip to Sandiat, San Manuel, Isabela. Both girls came from Bayombong, Nueva Vizcaya. Finding no transportation to Sandiat, they
repaired to the house of Freddie Simtioco, Emily’s boy friend, to stay
overnight. After supper, the three,
together with Albert Diaz, Freddie’s friend, went to watch a free movie being
shown at the Roxas municipal park. After the one-hour movie, the foursome proceeded to the Roxas Central
School to spend the rest of the evening just chatting.^[2]

After sometime, the two girls answered the call of nature at the
rear of the school building. When they
returned, they saw and heard a man (later identified as one Diosdado Aczon), in
fatigue uniform and with a cap on his head, accusing Freddie and Albert of
smoking marijuana.^[3]
He identified himself as a PC
soldier. The two denied the accusation
but the man persisted in accusing them. When the foursome invited him to go to the police station, Diosdado,
together with his companion (accused-appellant Villamor Aczon), who suddenly
came from the dark,^[4]
brought them to one of the rooms of the school building where Freddie and
Alberto were divested of their money, wallet and watch, by Diosdado who then
passed the articles to Villamor.^[5]

Thereafter, threatening the girls with his gun if they would not
follow him, Diosdado brought them at the back of the school building.^[6]
Villamor, who was momentarily left behind to guard the two boys, joined
Diosdado in bringing the girls to a banana grove about a kilometer away from
the school building.^[7] He
had in his possession a hunting knife with which he threatened both girls as
they were bringing them to the banana grove.^[8]

Upon reaching the place, Diosdado pulled Emily towards him, but
the latter was able to wrench herself free and run towards Jocelyn, so much so
that instead of Emily, Diosdado pulled Jocelyn and pushed Emily to
Villamor. The girls were brought by the
men to separate places to be raped.^[9]
Kneeling before Villamor, Emily pleaded with him not to violate her, saying
that if he had a sister and this will happen to her, it would pain him so
much. Deaf to her protestations,
Villamor ripped off her bra and panty after taking off her pants. All the while, Emily fought Villamor, but
being stronger, he overcame her resistance and raped her. Hardly had she dressed up, when, thirty
minutes later, it was now Diosdado’s turn to rape her. She fought his advances, but considerably
weakened by her first experience, Diosdado was able to remove her clothes and
rape her.^[10]

Both girls were set free by Diosdado and Villamor after
threatening to kill them if they would relate what happened to them to
others. They rushed to the house of Freddie where they related their
experiences to Freddie’s mother as Freddie was out with the police looking for
them.^[11]
The next morning the girls went to the police station and reported what had
happened to them. Emily’s statement was
taken and her complaint was filed (Exhibit “A”) after she was
medically examined by Dr. Elvis Amurao (Exhibits “B” and
“B-1”).^[12]

Villamor Aczon, together with Diosdado Aczon who is still at
large, was thus charged in an amended information for kidnapping with rape.^[13]
Arraigned, Villamor Aczon pleaded “Not Guilty.”

As found by the trial court, Villamor Aczon’s defense is as
follows:

“Accused Villamor Aczon (29), testified for himself. He claims that at about 7:00 to 7:30 o’clock
in the evening of December 26, 1987, he was at the jeepney terminal at Roxas,
Isabela, waiting for a ride bound for Masigun. Three police officers nabbed him. They were Pat Rosqueta, Pagulayan and Camato, of the Roxas Police
Station. He was suspected of carrying a
gun. He did not resist by telling them
he did not have a gun because he was not aware of any fault on his part. He claims that he was brought to the Municipal
Hall where he was maltreated and forced to bring out the gun. He was brought to a detention cell where the
police put pepper on his penis. That
night when he was detained, he was brought out to a culvert a little bit far
from the Municipal Hall. The next
morning, there were two ladies who came to his detention cell. Pat. Rosqueta pulled one of the ladies and
told her to point at him. The lady whom
Rosqueta made to point at him did not appear in Court, however, her companion
was the one who testified in Court.

“Aczon denies the accusation of Emily against him. He claims that he could not have committed
the crime imputed to him because he was picked up by the three (3) police
officers at 7:30 P.M., December 26, 1987, and detained in jail at 8:10 p.m.,
same evening (Exh. ‘1-A’).”^[14]

As abovestated, the trial court found
Villamor Aczon guilty as charged and sentenced him accordingly. Hence, this appeal.

The appeal has no merit.

Accused-appellant’s defense is anchored on alibi – that at around
7:00 to 7:30 o’clock in the evening of December 26, 1987 he was nabbed by the
police and detained at the Roxas Police Station at 8:10 that evening on
suspicion of illegally possessing a gun. Consequently, it would be physically
impossible for him to have raped complainant in spite of his positive
identification by the complaining witness, Emily Miranda, that he was the
person who abducted and raped her at past 10:00 o’clock that evening.

He offers^[15] as
part of his defense the blotter of the police station of the Municipality of
Roxas, Province of Isabela,^[16] to
prove that he was in jail at around 8:15 P.M. while the alleged abduction and
rape happened at past 10:00 P.M. of the same date.

In his brief
accused-appellant focuses on that part of the police blotter as
testified to by Major Uy, one of the prosecution’s witness, as follows:

“Q – I will give you this
blotter which you brought along and state before the Honorable Court what are
the entries on December 26, 1987, if there are entries there?

“A –  There are entries on
December 26, 1987, Sir. Entry No. 118737 dated 26-12-87, time: 2000 hrs., it is
8:00 in the evening.

“Fiscal Nunez:

May we request the major to read the entry on that date?

“A –  The entry on that date
states that one Alberto Diaz, maiden name unknown, 18 yrs. old, single and
resident of Rizal, Roxas, Isabela, reported to this police station that when
they were at the Roxas Central School together with their girl friends namely
Emily Miranda and Jocelyn Calderon with one Freddie Simtioco, two unidentified
armed men poked their guns (short) and divested their watch and wallet. Another entry is 118738 dated 26-12-87 at
2010 hrs., that is 8:10 in the evening. Upon receipt of the report, police Cpl. Rosqueta, Pfc. Macadangdang and
Pat. Camato responded to said report but girl friends-victims and robbers were
not already there. Another entry
118739, same date, time: 2015 hrs. Police Corporal Rosqueta, Pfc. Macadangdang, and Pat. Camato further
proceeded to Sitio Caragsacan, Rizal, this municipality to establish
checkpoints for possible way out of the suspects. And when they were walking along the road proceeding to that
place, they met a man with a bandoler around his waist walking hurriedly with a
hunting knife and a fanknife. They
easily identified him as one Villamor Aczon of Masigun West, this municipality
and revealed when they were already inside the police station that he and one
Diosdado Aczon, his cousin, were the ones who robbed the victims and further
alleged that the two girl victims Emily and Jocelyn were raped/abused at Sitio
Caragsacan, Rizal, this municipality near the river bank and when asked the
whereabouts of the victims he answered that they were already set free and
accompanied by them up to the road near the poblacion of Roxas. Entry 118740, 26-12-87, 2035 hrs. S/Sgt.
Bucad, this police station with three INP members left the station and
proceeded to Alemana, San Placido, this municipality to track down Diosdado
Aczon but returned station with negative result. Another entry 118741, 26-12­-87, time: 2050 hrs., OIC/Sgt. Bucad with three INP members proceeded to
Masigun West, this municipality to the residence of Diosdado Aczon, and when
they were walking along the barangay road, they met suspect handing short
firearm and flashlight; there was a shoot-out between the INP members but the
suspect was quick enough to evade arrest by the INP members and lost in the
dark.’ (TSN September 11, 1989, pp. 5-7)^[17]

Unfortunately, the very same police blotter relied upon by
accused-appellant proved to be his undoing. Rather than corroborating his alibi, the police blotter and the testimony
of Major Uy proved that, indeed, complainant was abducted and raped after her
companions were robbed. This is very
clear from the time sequence of the police blotter which is as follows:

1. 2000 Hrs. or 8:00 P.M. of December 26, 1987
– Alberto Diaz reported the theft of his watch and the wallet of one Freddie
Simtioco at the Roxas Central School;

2. 2010 Hrs. or 8:10 P.M. of same date – 3
policemen of the station investigated the school site but reported that the
robbers and girl friends-victims were no longer there;

3. 2015 Hrs. or 8:15 P.M. of same date – the
same three policemen reported that they met the accused-appellant who was
walking hurriedly with a hunting knife and a fanknife. When they brought him to the police station,
said accused-appellant revealed that he and one Diosdado Aczon, his cousin, had
earlier robbed the victims and raped their girl friends and had released them;

4. 2035 Hrs. or 8:35 P.M. of same date – four
policemen went to Alemana; San Placido, Roxas Municipality to track down
Diosdado Aczon but failed to find him;

5. 2050 Hrs. or 8:50 P.M. of same date – the
same four policemen went to Masigun West where they met Diosdado Aczon who,
however, escaped capture by shooting the policemen.

The above time sequence shows that accused-appellant was arrested
only after Alberto Diaz had earlier reported that two men had divested
them of their watch and wallet. It is
not indicated in the police blotter that Diaz reported that the two men also
took their girlfriends but in the entry for 2010 Hrs. or 8:10 P.M. it was
stated that the responding policemen did not find both robbers and the girls in
the school compound. It was ONLY
AFTER fifteen minutes from the first report that the policemen chanced upon
accused-appellant whom they easily identified as Villamor Aczon of Masigun
West.

Accused-appellant harps on the fact that the complaining witness
Emily Miranda testified that the abduction and rapes occurred after the
one-hour movie was finished or past 10:00 P.M.^[18] He
claims that if he was already in police custody at 8:15 P.M. how could he have
abducted and raped Emily Miranda at past 10:00 P.M.?

At this point, the Court notes that:

“In rape cases, the exact sequence of startling events crowded
into a brief period of time and productive of excitement and confusion is often
a matter of doubt even in the most honest and accurate memory, and in the
reiterated narration of such occurrences even the most candid witnesses
sometimes make mistakes and fall into apparently confused and inconsistent
statements, which, however, should not affect their credibility.”^[19]

Thus, testifying two (2) years after the commission of the crime
of abduction and rapes, it would not be farfetched if the time mentioned by
Emily Miranda as to when she was abducted and raped was off by one or two
hours, as when she said she must have been abducted and raped at past 10:00
P.M. But since Aczon revealed to the
police that at 2015 Hrs. or 8:15 P.M. they had abducted and raped the girls and
released them, this would put the abduction and rapes at around 7:00 to 8:00
P.M. It should be remembered further
that Emily testified that she was not wearing a watch at all^[20]
thus, whether the abduction and rapes occurred at around 7:00 to 8:00 P.M. or
past 10:00 P.M., the fact remains that Emily positively identified the
accused-appellant as the person who indeed abducted and raped her. We quote with approval the trial court’s
observation on the alleged time difference:

“In a remote rural area like Roxas, Isabela, time moves fast
and the night easily rows old even if the hands of the clock tells
otherwise. With all the harrowing
experience that Emily has undergone in the hands of her sexual tormentors, she
cannot be expected to be precise in recalling the exact time, during those
anxious moments of her captivity a minute longer must have been like eternity
to her.

“Considering also Exhs. ‘C’, ‘D’, ‘E’ and ‘F’, entries in the
police blotter of INP, Roxas, Isabela,
the fact that Alberto Diaz and Freddie Simchico reported how they were divested
of their belongings and how the two girls were taken away and the subsequent
action taken by the police, these entries cannot be taken as hollow ones. There might be variance in time but the fact
remains that the events occurred and happened as entered in the blotter.

“The absolute exactitude of time here is not essential to the
case. The presence of minor
inconsistencies in the testimony of a witness could he an indication of
truth. A witness whose testimony is
perfect in all aspects, without flaw and remembering even the minutest details
which jibe beautifully with one another, two herself open to suspicion of
having been coached or having memorized statements earlier rehearsed. (People vs. Ansan, G.R 49728, 15, July
1987). The rape victim’s testimony that
she was raped at ‘noontime’ is not necessarily contradictory to the time stated
in the Information, i.e., between 8:00 o’clock to 11:00 o’clock in the morning. (People vs. Ansan, supra).”^[21]

Against accused-appellant’s bare assertion that he was taken by
the police at around 7:00 to 7:30 P.M., without the same having been entered in
the police blotter, we have the official entries in the said blotter that Aczon
had been arrested at around 2015 Hrs. or 8:15 P.M. and when brought to the
police station he revealed that he, together with Diosdado Aczon, had just
raped the girls and released them. Accused-appellant has not shown any improper motive on the part of the
police officers^[22]
why they would enter such incident in the police blotter unless revealed to
them by the accused-appellant. The
presumption of regularity in the performance of said police officers of their
duties^[23]
has not been rebutted.

Accused-appellant’s alibi, it seems to us, has been carefully
contrived to fit the entries in the police blotter and to harmonize with the
testimony of the complaining witness that the abduction and rapes occurred
after the one-hour movie, which started at 9:00 P.M. at the Roxas Central
School, had ended to create a doubt as to accused-appellant’s guilt as shown in
the second to the last sentence of his brief which reads:

“The only conclusion that can be drawn is that she was not
raped. She merely put up a story to
cover up the nocturnal escapade that she had with her boy friend, TO
ASSURE AND PLACATE HER WORRIED AND IRATE MOTHER who arrived at Roxas,
Isabela on December 27, 1989 to look for her truant daughter.”^[24] (Emphasis supplied)

The statement with reference to complainant’s mother “who
arrived at Roxas, Isabela on December 27, 1989 to look for her truant
daughter” is utterly false as accused-appellant’s counsel, Atty. Francisco
V. Marallag knew from the very beginning that complainant is an orphan, her
mother having died two (2) years before the incident in question, as elicited
by him on cross-examination of said complaining witness, to wit:

“Q You are an orphan, is
that correct?

“A    My mother died, sir.

“Q When did your mother
die?

“A    I cannot remember, sir.

“Q In December, 1987, was
your mother still alive?

“A No, sir.

“Q How many years before
1987, did she die?

“A    If I am not
mistaken, two (2) years, sir.”^[25]

For his attempt to mislead the court, Atty. Benjamin M. Dacanay
was disbarred in Adez Realty, Inc. v. Court of Appeals^[26]
“for intercalating a material fact in the judgment of the court a quo
(therein) thereby altering and modifying its factual findings with the apparent
purpose of misleading the court in order to obtain a favorable judgment”
For the same reason, counsel for accused-appellant should be made to explain
his actuation by his irresponsible statement in the appellant’s brief
calculated to mislead the Court in favoring his client’s appeal.

Clearly, Emily Miranda’s positive identification of
accused-appellant as the short man who abducted and raped her at knifepoint
prevails over his contrived alibi.^[27]

Accused-appellant’s claim that the allegation of rape is
“amusing” because the doctor who examined Emily Miranda the day after
the rape did not find any other
injuries, aside from fresh hymenal lacerations, on her body,^[28]
thereby contradicting the latter’s testimony that she allegedly fought
accused-appellant when he was forcibly removing her T-shirt, bra, pants and
panty, and, when overpowered, her naked body was pushed to the ground, did not
affect complainant’s credibility.

The fact that no contusions, bruises, scratches, abrasions and
other similar injuries were found on complainant’s body only indicates that
accused-appellant had so thoroughly intimidated Emily Miranda, with the hunting
knife he carried^[29]
that she had no choice but to submit to his lecherous desires.

The relevant testimony of Dr. Amurao, confirming the rape, is as
follows:

“Q Now, do you remember
having examined one by the name of Emily Miranda on December 27, 1986?

“A    Yes, sir.

“Q What time did you
conduct the examination?

“A About 8:00 o’clock in
the morning.

“Q    And what was the
complain(t) if you can still remember doctor, of Emily Miranda, reason for
which she sought your services?

“A    She came with a
complain(t) that she was sexually abused twice by two different persons.

xxx               xxx     
           xxx

“Q    Will you indicate,
doctor, what were your findings?

“A    Upon examination of
one Emily Miranda, there was no physical injury noted but that of fresh hymenal
laceration at 12:00 o’clock, 4:00 o’clock and 10:00 o’clock, on the region of
the hymen.

“Q    You stated here, doctor,
that the laceration of the hymen is fresh. What do you mean by that fresh hymenal laceration?

“A    That the laceration is
quite recent.

“Q    By the way, can you
describe the pigmentation or the color of the laceration when you examined the same?

“A    The laceration is somewhat reddish in
appearance with torn edges.

“Q    Now, can you determine
from the appearance of the laceration upon examination the approximate time
when this laceration was inflicted?

“A    Less than
twenty-four (24) hours, sir.

“Q Now, doctor, you stated
before the Honorable Court what could have caused the fresh hymenal laceration
which you found after examination?

“A    The hymen is
lacerated during the first sexual intercourse but this is not always the case.

“Q    What could have caused
the laceration?

“A    Since the patient
came in and that she said she was sexually abused by two different men, then
that might have been the cause of the laceration.

“Q    To amplify, it could
have been caused by the insertion of the male organ into the vagina, is that
what you mean?

“A    Yes, sir.”^[30]

Although the information charged the accused-appellant with the
crime of kidnapping with rape, the body of the information alleged a crime of
forcible abduction with rape, and the evidence proved at the trial is that of
forcible abduction with rape. It is
settled that what controls is not the designation of the offense but the
description thereof as alleged in the information.^[31]
And as described therein, the offense imputed to Villamor Aczon contains all
the essential elements of forcible abduction with rape, to wit: (1) the taking
of a woman against her will; (2) the taking is with lewd designs^[32]
and (3) the rape of the woman was accomplished through force or intimidation.^[33]
Here, Emily Miranda testified that the short man, which is accused-appellant,
had a knife with which she was threatened.^[34]
Under the facts proven by the prosecution, accused-appellant committed the
complex crime of forcible abduction with rape as the forcible abduction was the
necessary means to commit the crime of rape.^[35] The
element of “lewd design” was established by the actual rape.

Pursuant to Article 48 of the Revised Penal Code, in complex
crimes the penalty for the more serious crime shall be imposed. Article 342 of the said Code penalizes
forcible abduction with the penalty of reclusion temporal while Article
335 penalizes the crime of rape with reclusion perpetua. The latter then, is the more serious
crime. The penalty to be imposed is,
therefore, reclusion perpetua.

WHEREFORE, the decision of the Regional Trial Court
convicting the accused-appellant of kidnapping with rape is hereby VACATED and SET
ASIDE and a new one entered finding accused-appellant Villamor Aczon guilty of
the crime of forcible abduction with rape. He is sentenced to suffer the penalty of reclusion perpetua and
to indemnify the offended party, Emily Miranda, in the amount of P50,000.00 and
to pay the costs.

Counsel for accused-appellant, Atty. Francisco V. Marallag, is
required to explain within ten (10) days from receipt of this decision why he
should not be disciplinarily dealt with for fabricating a fact in
accused-appellant’s brief, which he signed as counsel de oficio, which
fact was designed to mislead this Court into considering favorably the appeal.

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, Regalado, and Puno, JJ., concur.

---

^[1]
“People v. Aczon,” Criminal Case No. 1025, February 16, 1990,
penned by the Hon. Juan A. Bigornia, Jr., presiding judge, RTC, Second Judicial
Region, Branch 18, Ilagan, Isabela.

^[2]
TSN, August 3, 1989. pp. 6-16; August
2, 1989, pp. 3-6.

^[3]
TSN, August 2, 1989, pp. 9-10; August 1, 1984, pp. 24-25.

^[4]
T.S.N., August 2, 1989, p. 11.

^[5]
Ibid., pp. 11-12.

^[6]
Ibid., pp. 13-15; T.S.N., August 22, 1989, pp. 8-11.

^[7]
T.S.N., August 2, 1989, p. 25; T.S.N., August 22, 1989, p. 12.

^[8]
T.S.N., August 2, 1989, pp. 25-26; T.S.N., August 22, 1989, pp. 9-10.

^[9]
T.S.N., August 2, 1989, pp. 18-20.

^[10]
Ibid., p. 23.

^[11]
Ibid., pp. 28-29.

^[12]
Ibid., pp. 29-32.

^[13]
Rollo, pp. 6-7.

^[14]
Rollo, p. 19.

^[15]
TSN, October 24, 1989, p. 20.

^[16]
Exh. “1″ (Exh. “H” for prosecution), Folder of Exhibits.

^[17]
Appellant’s Brief, pp. 7-9; Rollo, pp. 49-51.

^[18]
TSN, August 2, 1989, pp. 5-20.

^[19]
People v. Pasco, 181 SCRA 233, 242-243.

^[20]
TSN, August 22, 1989, p. 12.

^[21]
Rollo, pp. 21-22.

^[22]
Reyes v. Eligino, G.R. Nos. 70113-14, December 11, 1992.

^[23]
People v. Agustin, G.R. No. 98362, November 13, 1992.

^[24]
Appellant’s brief, pp. 11-12, Rollo, pp. 53-54.

^[25]
TSN, August 1, 1989, p. 14.

^[26]
G.R. No, 100643, October 30, 1992.

^[27]
People v. Carino, G.R Nos. 92144-49, December 18, 1992.

^[28]
TSN, August 23, 1989, p. 7.

^[29]
TSN, August 2, 1989, pp. 25-26.

^[30]
TSN, August 23, 1989, pp. 5-8.

^[31]
Santos vs. People, 181 SCRA 487.

^[32]
TSN, August 23, 1989, pp. 5-8.

^[33]
Article 342, Revised Penal Code.

^[34]
TSN, August 2, 1989, p. 26.

^[35]
People v. Grefiel, G.R. No. 77228, November 13, 1992.