G.R. Nos. 104942-43. November 25, 1993
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NAPOLEON SUBINGSUBING, ACCUSED-APPELLANT.
PADILLA, J.:
Accused-appellant
Napoleon Subingsubing was charged with the crime of rape in three (3)
separate informations reading thus:
CRIMINAL CASE NO. 772
“That on or about noontime of November 28, 1989 at Barangay
Fiangtin, Barlig, Mountain Province and within the jurisdiction of this
Honorable Court, the above-named accused by means of force, threat and
intimidation by poking his garand rifle and then boxing the belly of the
complainant, MARY JANE S. ESPILAN, which rendered the latter unconscious, did
then and there willfully, unlawfully and feloniously have carnal knowledge with
the complainant, against her will and without her consent.”
CRIMINAL CASE NO. 773
“That on or about the afternoon of November 30, 1989, at
Barangay Fiangtin, Barlig, Mountain Province and within the jurisdiction of
this Honorable Court, the above-named accused by means of force, threat and
intimidation by putting over the nose of the victim handkerchief soaked with
chemical which rendered the latter unconscious did then and there willfully,
unlawfully and feloniously have carnal knowledge with the complainant, against
her will and without her consent.”
CRIMINAL CASE NO. 774
“That on or about noontime of November 25, 1989, at Barangay
Fiangtin, Barlig, Mountain Province, and within the jurisdiction of this
Honorable Court, the above-named accused by means of force, threat and
intimidation by poking his garand rifle and then boxing the belly of the
complainant, MARY JANE S. ESPILAN, which rendered the latter unconscious, did
then and there willfully, unlawfully and feloniously have carnal knowledge with
the complainant, against her will and without her consent.”
Upon
arraignment, the accused entered pleas of not guilty to the three (3) criminal
informations which were then consolidated and tried jointly to expedite
proceedings.
After trial on
the merits, the trial court found the case meritorious for the prosecution in
Criminal Case Nos. 772 and 774 in view mainly of the testimony of the
complainant which was found credible. Accused-appellant was, therefore, convicted for rape in said cases. However, insofar as Criminal Case No. 773
was concerned, the trial court found the testimony of the complainant therein
inadequate to sustain conviction and “surmised that perhaps out of her
bitterness, the said complainant wanted to ensure that the accused be meted out
the highest penalty possible.” Accused was accordingly acquitted in said
Criminal Case No. 773.
Hence, this
appeal in Criminal Case Nos. 772 and 774, docketed in this Court as G.R. No.
104942 – 104943.
The case for the
prosecution, anchored mainly on the testimony of complainant Mary Jane Espilan,
was summarized by the trial court[1] the pertinent portion of which
states:
“The complainant Mary Jane Espilan in all of these actions is
sixteen years old, unmarried and resident of Philex Mines, Baguio. For the past three years immediately
preceding 1990, she continuously lived with her grandmother at the latter’s
house at Bo. Fiangtin, Barlig, Mountain Province while her parents were
residing in Baguio. At that time she
was a high school student. The accused
Napoleon Subingsubing is the complainant’s uncle, the brother of her mother and
the son of her grandmother. Said
accused was then living with his mother and his niece in the same house as
mentioned. On Nov. 25, 1989, at 1:00
P.M., Mary Jane and Napoleon were alone in the house, the grandmother having
gone to the fields. When Mary Jane was
about to go out to attend her afternoon classes in school, Napoleon forcibly
pulled her to the bedroom of the grandmother, pointed his Garand rifle at her,
then punched her in the stomach as a result of which the former lost
consciousness. When the complainant
regained her senses, she noticed that she was en dishabille and her vagina was
bloody. She felt pain in her private
parts and is quite certain she was raped or abused. The accused who was then standing outside the room warned the
complainant not to tell anybody what happened or else he will kill her. Hence Mary Jane did not report the incident
to her grandmother or to anyone for that matter. In the morning of November 28, 1989, at 10:30 o’clock A.M., Mary
Jane arrived from school and Napoleon was alone in the house. The latter again leveled his Garand Rifle at
the former and pushed her into her bedroom. The complainant tried to get out of the house but the accused held unto
her. Inside the room, the said accused
pulled down the skirt of Mary Jane, pushed her down on the floor, stripped off
her panties and laid down on top of her with the zipper of his pants open. Forcing the complainant’s legs apart, the
accused abused or took advantage of the former the second time around. All the while, Napoleon was holding unto his
rifle and Mary Jane was afraid to scream for he might squeeze the trigger. Immediately thereafter, the complainant
gathered up all her clothes and went to their own family house at Bo. Pat-tog,
Barlig which is less than a kilometer away from her grandmother’s
residence. She wanted to get away from
her uncle, hence she stayed alone in the house until November 30, 1989 in the
morning when the accused followed her. She was then cleaning the ceiling of their house when Napoleon sneaked
up behind her, and when the former tried to scream, the accused placed a piece
of cloth soaked with some sort of chemical over the nose of the complainant and
the latter fainted. When she awoke,
Mary Jane found herself lying on the floor stark naked. She felt that she had again been sexually
molested. The accused who was outside
the house menacingly ordered the complaiÂnant to pack her clothes and go back
home with him. The afternoon of the
same day, Mary Jane and Napoleon went back to the house of the former’s
grandmother. The complainant did not
reveal to anybody the things that happened to her for fear that the accused
might really kill her as the accused had threatened to do. Months later, when she was with her parents
in Baguio, Mary Jane finally divulged everything to her mother Rosita
Espilan. They went back to Barlig and
reported the incidents to the police station where the statement of the
complainant was taken (Exhs. “A,” Crim. Case No. 772, pp. 4-5; Crim.
Cases Nos. 773-774, pp. 2-3). Thereafter, she had herself physically examined at the Barlig hospital
by a government
physician and was found pregnant (Exh. “C”; p. 6, Crim. Case No.
772). On August 29, 1990 in Baguio, the
complainant delivered a baby boy. The
latter before all these things happened to her was a virgin with no prior
sexual experience. She did not even
have a boyfriend. In open court, Mary
Jane Espilan singled out the accused Napoleon Subingsubing as the culprit in
all of the incidents she earlier testified to.
xxx xxx xxx”
At the trial,
the accused Napoleon Subingsubing denied the charge of rape as narrated above
and proferred a different story. Interposing consent on the part of the complainant as a defense, he
testified[2] that at around 10:00 o’clock in the
morning of 25 November 1989, he arrived at his mother’s house at Bo.
Fiangtin, Barlig, Mountain Province after fetching wood. Shortly thereafter, the complainant arrived
from school, massaged the back of the accused and then prepared their
lunch. After eating, the accused went
to his room to rest but was followed by the complainant who laid down beside
him, placed her hand on the accused’s stomach, and then the pair embraced. They both removed their clothes and then had
sexual intercourse. At this time, the
complainant was smiling, tightly embracing the accused. After the intercourse, the complainant put on
her clothes, went to her room to change and then went back to school. That evening, the accused brought the
complaiÂnant to attend a wake. The
accused also professed that the incident on 25 November 1989 was the only
occasion when he had sexual intercourse with the complainant.
On 28 November
1989, the complainant asked him to help clean their house located at Pat-tog,
Barlig, Mountain Province, as witnessed by a neighbor’s
child. The accused denied that he had
sexual intercourse with the complainant on 28 November 1989 and 30 November
1989.
To bolster the
claim of the accused, his mother, Rufina Subingsubing, who is also the
grandmother of the complaiÂnant, testified,[3] among others, that the three (3) of
them were living in one house and that their relationship was happy, even after
the month of November 1989; that the complainant left her house in March 1990
for a vacation and was fetched by her mother; that the only thing she observed
about the complainant was that her breasts were becoming bigger; that the
complainant and the accused got food for the pigs on Saturdays and that when
the latter would receive his monthly salary, the complainant would ask him to
take her to the movies.
Three (3) other
witnesses for the defense were presented who corroborated the story of the
accused and testified that indeed, the complainant and the accused were seen
going out together and sharing happy moments months after November 1989 (when
the alleged rapes were committed).
It is a fundamental rule in criminal procedure that the
prosecution has the onus probandi in establishing the guilt of the accused,
as a consequence
of the tenet ei incumbit
probatio qui dicit, non qui negat, that is, he who asserts, not he who
denies, must prove. This is especially
significant in rape cases for, generally, in the prosecution thereof, the only
two (2) parties who can testify as to the occurrence are the complainant and
the accused. Very often, their
respective testimonies are diametrically contradictory as to what really
happened.[4]
A careful perusal of the records of the present case reveals,
even if we were to assume arguendo that the defense of consent on the part of the
complainant was not suffiÂciently established, that the evidence for the
prosecution cannot, on its own, stand and suffice to establish the guilt of the
accused for the crime of rape beyond reasonable doubt.
Although the
general rule is that this Court by and large respects the factual findings of
the trial court because of its better position in assessing the credibility of
witnesses through close scrutiny of their demeanor, mannerism and attitude, the
present case falls short of convincing us that it falls under such general
rule.
A perusal of the
records and the testimony of the complainant discloses contradictions and
inconsistencies on vital details which lead one to seriously doubt the veracity
of her story.
On 05 March
1991, during her direct examination, complainant described the incidents when
the accused allegedly raped her, as follows:[5]
“Q: Will you tell this Honorable Court what was
that incident?
A: When
I was about to leave for school (this was on 25 November 1989) and was almost
to go out, my uncle pulled me and when I resisted trying to go out, he poked
his gun at me and boxed me on my stomach and I was unconscious. When I woke up, I was conscious already.
xxx xxx xxx (Underscoring supplied).
Q: When
you regain (sic) consciousness miss witness, what was your position?
A: I
was naked, sir.
Q: When
you say you were naked, you mean to say that your panty was removed?
A: Yes.
Q: Your
shirt, underwear, and even your panty were removed?
A: Yes,
sir.
Q: But
before the accused boxed you, do you remember if you were wearing all your
clothings?
A: I
was wearing my school uniform.
Q: And
when you regained consciousness, you noticed that your clothings were removed?
A: Yes.
Q: Do
you know who removed your clothings?
A: Yes.
xxx xxx xxx
COURT:
Q: You
said that when the accused was on top of (you) you don’t (sic) have any
underwear?
A: When
he was on top of me I was forcing myself to get out.
Q: But
you don’t (sic) have your panty?
A: He
removed my panty.
Q: About
him how did he look?
A: Only
the zipper of his pant was down.
Q: And
then he went on top of you?
A: Yes
and I forced to get out but he was strong.
Q: When
he was on top of you, you forced yourself to get out, that was all?
A: Yes,
sir.
Q: What
else happened?
A: He
did again what he did to me.
Q: And
what is that that he did to you?
A: He
abused me again, sir.
Q: And
what do you mean by abuse?
A: He
took advantage again of me for the second time.
xxx xxx xxx
Q: Did
you not shout for help?
A: I
tried, sir but his gun was poked to (sic) me.
xxx xxx xxx
Q: Did
he tell you anything?
A: Yes,
he said that if I will scream, he will kill me.
xxx xxx xxx
Q: And
when you went to your house at Barangay Pat-tog, what happened there, if any?
A: When
I went to our house at Pat-tog I did not know that he still followed me there,
that was on the 30th of November, 1989.
Q: He
followed you at Barangay Pat-tog on November 30, 1989?
A: Yes.
Q: And
when he followed you there, what happened?
A: While
I was cleaning the ceiling of our house, I did not know that he entered the
second floor of our house.
Q: And
after that what happened?
A: When
I was about to shout, he immediately came to me and put a piece of cloth with chemical on my nose then I felt
unconscious already.
Q: And
were you able to regain consciousness?
A: I
regained consciousness after all the thing happened to me.
Q: And
when you regained consciousness, what did you notice?
A: I
was lying on the floor naked, sir.
Q: And
what do you think happened to you.
ATTY. DOMALSIN:
The witness will be
incompetent to answer what happened to her because she was made unconscious.
COURT:
Being the person herself
she is competent to feel what happened to her.
Q: After
you regained consciousness, you stated that you were lying on the floor?
A: Yes,
sir.
Q: What
did you feel at that time?
A: I
felt uneasy.
Q: That
was all?
A. Yes.
Q: You
did not feel what happened to any part of your body.
A: I
felt. He did again what he has done to
me for the third time.
xxx xxx xxx
Q: Do
you remember miss witness if during those times when you said that the accused
boxed you and you felt unconscious….
A: I
did not feel anything when I felt unconscious.
Q: When
he threatened you telling you that he will kill you if you tell anybody what
happened, what did you say?
A: I
just kept quiet.
Q: Do
you have neighbors?
A: We
have neighbors but they were out that time.
xxx xxx xxx
Q: On
March (November) 28, 1989, do you remember where were you?
A: I
was in the same house of my grandmother.
Q: And
what were you doing at that time?
A: I
have just arrived from school, sir.
Q: And
when you arrived from school, what happened?
A: When
I was in the house, he poked his gun at me and stripped my shirt.
Q: Who
poked the garand rifle at you?
A: My
uncle, sir.
Q: Will
you please tell this Honorable Court what happened?
A: At
about 11:30 P.M., I entered the house and my uncle poked his gun at me. I don’t know why he poked his gun at me then
he did again what he did to me.
Q: When
he poked his gun at you, what did you do?
A: I
forced my way out.
Q: And
were you able to go out?
A: No,
sir because he was strong.
Q: What
did he tell you, if any?
A: The
same threat as the first time.
Q: After
he poked his gun at you, what did you do next?
A: He
took advantage of me again, sir.
Q: Will
you be more specific, miss witness. When you said he took advantage of you, what do you mean?
A: He
did the same thing that he did to me.
Q: What
is that thing that he did to you?
A: He
again abused my dignity as a woman.
Q: When
he poked his gun at you, were you wearing clothes?
A: Yes,
sir.
Q: And
after that what did you do?
A: He
removed my panty.
Q: And
after removing your panty, what did he do next?
A: He
did it again.
Q: When
he removed your panty, what was your position?
A: I
was standing and I was forcing to leave when he forced me to remove my panty
while his gun was poked at me.
Q: And
after he removed your panty, you said you were standing?
A: Yes.
Q: Then
what did he do next?
A: He
pushed me down on the floor.
Q: And
after that what did he do next?
A: He
did the same thing to me.
Q: When
he pushed you down to the floor, what else happened?
A: He
was on top of me.
Q: When
he was on top of you, was he wearing clothes at that time.
A: Yes,
sir.
Q: He
did not remove any of his clothes?
A: He
removed his pants.
Q: What
else did he do?
A: He
put down the zipper of his pant.
Q: And
after he put down the zipper of his pant, what happened next?
A: I
tried to get out but he was strong.
Q: And
after he removed the zipper of his pant, what did he do?
A: He
abused the dignity of my woman (sic).
xxx xxx xxx
Q: Miss
witness you said a while back
that the accused poked his gun to (sic) you then removed your panty and then
after that he pushed you down the floor?
A: Yes,
sir.
Q: Aside
from that he also removed the zipper of his pant then went on top of you?
A: I
was unconscious.
xxx xxx xxx (Underscoring supplied).
Q: Aside
from going on top of you, what else did he do?
A: He
poked his gun at me.
Q: Then
what else?
A: He
did the same thing.
Q: The
specific thing?
A: He
raped me again, sir.
xxx xxx xxx”
In short, the complainant
on 05 March 1991 testified that on 25 November 1989 and 28 November 1989, the
accused employed force and threats which rendered her unconscious and unable
to feel anything when ravished by the accused. However, when recalled to the witness stand on 02 April 1991, the
same complainant Mary Jane Espilan testified:[6]
“Q:
Miss Witness, you declared during the prior examination that the accused,
Napoleon Subingsubing raped, abused your dignity or ‘pinagsamantalahan ka’ and that
was on March (November) 28, my question is what do you mean when you said he
abused your dignity on March (November) 28, 1991?
A: He
pointed his gun to (at) me, then pushed me to my Iola’s room, let me down
trying to separate my legs and then placed his penis into my vagina.
COURT:
Q. When
you said that the accused pointed a gun at you, what kind of gun?
A. Rifle,
M-14, sir.
Q. When
he pushed you down, was he still holding his gun?
A. Yes,
sir.
Q. When
he was doing the act, was he still holding his gun?
A. Yes.
Q. You
did not resist.
A. I
resisted but he was stronger than me.
Q: The
second time he did the same, was he still holding the gun?
A: Yes,
sir.
xxx xxx xxx”
The
complainant’s theory of force and intimidation manifested in her sworn
statement and her testimony on 05 March 1991, and which rendered her “unconscious,” is belied by her own testimony on 02
April 1991. Complainant speaks of
resistance, intimidation, and loss of consciousness attributed to accused’s
violence and threats. However, and this
must be carefully noted, the complainant’s testimony on 02 April 1991 gave a detailed
description of what transpired during those incidents.
The Court also
cannot help but question the conduct of the complainant after the alleged
incidents of rape. The complainant did
not reveal the incidents to her grandmother allegedly because the accused told her not to
and that he would kill the complainant and her grandmother if she told
anyone. Neither did she tell her mother
upon the latter’s arrival at Barlig on 28 April 1990 or soon after the complainant
was brought by her mother to Philex Mines in Baguio City. The mother was told of the alleged incidents
only on 15 May 1990. It is quite
unnatural for a girl not to reveal such assaults on her virtue (if indeed they
occurred) immediately after they happened or when the alleged threat on her
life and her grandmother’s had ceased, as
in this case, when complainant had gone to Baguio. The complainant likewise admitted that after
the alleged incidents in November 1989, she still went out with the accused to
watch betamax movies or get food for the pigs in the ricefields. Such behaviour directly contradicts the
normal or expected behaviour of a rape victim. There is no way she could possibly forgive, to say the least; and yet,
complainant interacted immediately with her assailant. Viewed in its entirety, such behaviour of
the complainant appears to be
inconsistent with her charge of rape.
The accused, on
the other hand, while admitting that indeed he had sexual intercourse with the
complainant on 25 November 1989, set up the defense that the latter consented
to such act. The two (2) succeeding
incidents were however denied by the accused. While we find such defenses weak, we nevertheless stress once more the
time-honored principle that the prosecution must rely on the strength of its
evidence rather than on the weakness of the defense.
Appellant’s
exculpation from the offense of rape does not mean, however, that his
responsibility is merely moral and not penal in character. If that were so, considering the facts of
this case, it may be cause for right-thinking men and women to discern a gap or
fissure in the legal order, one that cries moreover to be bridged.[7]
As things stand,
for failing to meet the exacting test of moral certainty, it is incumbent upon
us to set aside the trial court’s judgments of conviction for rape. However, the Court must state that it finds conclusive
evidence (no less than the accused-appellant’s admission) that on 25
November 1989, the accused Napoleon Subingsubing had sexual intercourse with
Mary Jane Espilan when she was only 16 years of age. The complainant and the accused were living
in the same house. The accused is the
uncle of the complainant, brother of her own mother.
Qualified
seduction is the act of having carnal knowledge of a virgin over 12 years to 18
years of age and committed by any of the persons enumerated in Art. 337 of the
Revised Penal Code, to wit: any person
in public authority, priest, home-servant, domestic, guardian, teacher, or any
person who, in any capacity, shall be entrusted with the education or custody
of the woman seduced. Abuse of
confidence is the qualifying circumstance in the offense. Notably,
among the persons who can commit qualified seduction is a
“domestic”. And a
“domestic,” for purposes of said legal provision, has been
interpreted judicially as –
“x x x Upon the word domestic being
employed in said legal provision segregating it from that of a servant,
the term is applied to persons usually living under the same roof, pertaining
to the same house, and constituting, in this sense, a part thereof,
distinguishing it from the term servant whereby a person serving another on a
salary is designated; in this manner, it has been properly used.”[8]
Under the
circumstances of the case at bench, we hold that a conviction for qualified
seduction is proper in Criminal Case No. 774. The verified complaint for rape contains allegations, sans averment on the use of force,
which impute the crime of qualified seduction. Any deficiency in the complaint is supplied by the supporting affidavit,[9] where complainant averred that the
accused Napoleon Subingsubing, her uncle,[10] who was living in the same house as the complainant,[11] had sexual intercourse with
her. The accused took advantage of his
moral ascendancy if not dominance over the complainant. She was presumably a virgin. As already stated, the accused was a
domestic in relation to the complainant within the meaning of Art. 337 of the
Revised Penal Code.
WHEREFORE, in G.R. No. 104943, the judgment
of the trial court in Criminal Case No. 774 is hereby MODIFIED by convicting
the accused of the crime of QUALIFIED SEDUCTION instead of RAPE. The accused is hereby sentenced to an indeterminate penalty of six (6) months of ARRESTO
MAYOR, as minimum to
two (2) years, eleven (11) months and ten (10) days of PRISION
CORRECTIONAL as
maximum. Accused is likewise ordered to
indemnify the complainant in the amount of P30,000.00 and to support the child
of the complainant. Costs against
accused-appellant.
The
accused-appellant is ACQUITTED in
G.R. No. 104942 (Criminal Case No. 772) based on reasonable doubt.
Upon the
finality of this decision, let the records of this case be remanded to the court
of origin for the sole purpose of determining the amount of support to which
the child in Criminal Case No. 774 is entitled.[12]
SO ORDERED.
Narvasa, C.J., (Chairman), Regalado, Nocon, and Puno, JJ., concur.
[1]
Rollo, pp. 138-140
[2]
TSN, pp. 86-93
[3]
TSN, pp. 46-48
[4]
People vs. Godofredo Sagot, G.R. Nos. 102773-77, June 8, 1993
[5]
TSN,
pp. 5-20
[6]
Id., pp. 39-42
[7]
People vs. Alvarez, 55 SCRA 81, 91
[8]
People vs. Alvarez, G.R. No. 34644, January 17, 1974, 55 SCRA p. 92
[9]
People
vs. Samillano, 56 SCRA 573, 580
[10]
Rollo, p. 12
[11]
Ibid., p. 11
[12]
People vs. Noly Sia, G.R. No. L-28884, 25 July 1969, 28 SCRA 789