THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOSE DELEVERIO, ACCUSED-APPELLANT.

Before the Court for automatic review is the decision of the Regional
Trial Court (“RTC”) of Basilan, 9^th Judicial Region, Branch 2, in
the consolidated Criminal Case No. 2125-414 and Criminal Case No. 2136-418 for
rape. The accused, Jose Deleverio, is a
58-year old farmer respected and revered by the complainant, Roxan Benarao, an
eight-year old child. Indeed, the
complainant is the step-granddaughter of the accused, he being married to the
girl’s natural grandmother (Maria Sarah). Accused Jose Deleverio is the second husband of Maria Sarah.

The accused was charged with two counts of rape, in two separate
complaints, one in Criminal Case No. 2125-414 and the other in Criminal Case
No. 2136-418, viz:

Criminal Case No. 2125-414

“COMPLAINT

“The undersigned complainant, an 8-year old minor, under oath,
accuses Jose Deleverio of the crime of Rape, committed as follows:

“That on or about the 7^th day of April, 1994, and within
the jurisdiction of this Honorable court, viz., at Maloong Legion, Municipality
of Lamitan, Province of Basilan, Philippines, the above-named accused, by the
use of force, threat and intimidation, and with lewd designs, did then and
there willfully, unlawfully and feloniously point a knife on her stomach,
remove her dress and short pant, and by the use of force and lewd designs,
succeeded to have carnal knowledge with the undersigned complainant, against
her will.

“Contrary to law.

“Isabela, Basilan Province, May 30, 1994.

(SGD.) ROXAN BENARAO

Complainant”^[1]

Criminal
Case No. 2136-418

“COMPLAINT

“The undersigned complainant, an 8-year old minor, under oath,
accuses Jose Deleverio of the crime of Rape, committed as follows:

“That on or about the 13^th day of May, 1994, and within
the jurisdiction of this Honorable Court, viz., at Maloong Legion,
Municipality of Lamitan, Province of Basilan, Philippines, the above-named
accused, by the use of force, threat and intimidation, and with lewd designs,
did then and there willfully, unlawfully and feloniously point a knife on her
stomach, remove her dress and short pant, and by the use of force and lewd
designs, succeeded to have carnal knowledge with the undersigned complainant
against her will.

“Contrary to law.

“Isabela, Basilan Province, May 30, 1994.

(SGD.) ROXAN A. BENARAO

Complainant”^[2]

Provincial Prosecutor Domingo B.
Kinazo confirmed, in his resolution of 30 May 1994, that the results of the
preliminary investigation, after considering particularly the accusatory
affidavit and fitting it against the evidence for the defense, would
sufficiently show that the complainant had been a victim of rape on two occasions.^[3]

Following the filing of the informations in the two separate
criminal cases, an Order of Arrest was issued on 06 June 1994 by Executive
Judge Salvador Memoracion. The order of
arrest was duly served and effected on 05 July 1994.^[4]

When arraigned on 13 June 1994 in Criminal Case No. 2125-414 and
on 05 July 1994 in Criminal Case No. 2136-418, the accused pleaded not
guilty. The parties agreed to have the
cases jointly tried.^[5]

The evidence for the prosecution, in main consisting of the
testimony of Roxan given in the Visayan dialect, was culled by the Solicitor
General; his brief narration –

“Roxan Benarao, an 8-year old child, and her brother Ramon
lived with her grandfather, herein appellant Jose Deleverio, in Legion Maloong,
Lamitan, Basilan, wherein they shared the same room.

“On April 7, 1994 at 8:00 o’clock in the evening, while they
were already resting, the appellant poked a knife at the stomach of his 8-year
granddaughter Roxan Benarao after which he loosened her short pants (TSN, July
5, 1994, p. 7).

“Notwithstanding the cries of Roxan, the appellant managed to
insert his penis into Roxan’s vagina as a result of which she felt dizzy (TSN,
July 5, 1994, p. 8). Afterwards, Roxan
reported the incident to her older brother Ramon and to her grandmother Maria
Deleverio who did not believe her (TSN, July 6, 1994, p. 17).

“On May 13, 1994 at about 9:00 o’clock in the evening, the
appellant again inserted his penis into the vagina of Roxan for which she cried
(TSN, July 1994, p. 18). When Roxan
reported the molestation to her grandmother, the latter refused to believe her
(TSN, July 16, 1994, p. 18). Roxan then
reported the matter to her mother who brought her to the police.”^[6]

Susan Benarao, the mother of Roxan, was also put to the witness
stand. She identified in open court her
stepfather, the accused Jose Deleverio, as being the second husband of her
mother Maria Sarah Deleverio. During
school days, her 8-year old daughter Roxan and 13-year old son Ramon would stay
with the accused and Maria Sarah at the latter’s residence in Maloong Legion,
Lamitan, Basilan. It was in the
couple’s house in Maloong where the two incidents of rape were
perpetrated. Some time in May 1994,
Susan Benarao took back her two children. Later that same month, or on or about 26 May 1994, Roxan disclosed, in
between sobs, to her mother the fact of her having been “molested”
twice, the first on 07 April 1994 and the second on 13 May 1994, by the
accused. Susan lost no time in
reporting the matter to the police and bringing her daughter to the Lamitan
Emergency Hospital for physical examination.^[7]

Dr. Joel Absin, the physician who examined Roxan, issued on 27
May 1994 a medical certificate, viz:

“Date of Incidence:               April
7, 1994

                                              May
13, 1994

“Time of Incidence:               April
7, 1994    –           8:00 p.m.

                                              May
13, 1994  –           8:00 p.m.

“Place of Incidence:              Maloong
Legion at complainant residence.

“F I N D I N G S

“A fairly developed female child well nourished secondary sex organ
not developed.

“Genital Findings:

“-       old hymenal
laceration at 5:00, 2:00 & 11:00 o’clock on the face of the watch

“-       Admits one small
finger without resistance.

“Conclusion:

“–       physical virginity recently lost on a child of Roxan Binarao.”^[8]

The defense, in refutation of the testimony of Roxan, presented
accused Jose Deleverio himself and his wife Maria Sarah.

Jose Deleverio vehemently denied having raped Roxan. He stated that on 07 April 1994, the first
time she allegedly had been raped, Roxan was no longer in fact staying with the
couple, her mother having fetched her and her brother shortly at the close of
the schoolyear in Maloong Elementary School. The accused testified that on the night of 13 May 1994, the date of the
supposed second rape, he was all the time with his wife, Maria Sarah, in their
house at Maloong Legion. He said that
he had always treated Roxan and her brother Ramon like they were his own
children but he would, of course, discipline them so long as he had to. He believed that the two counts of rape
lodged against him had been merely fabricated by Susan Benarao who did not like
the idea of her children being sent home to her by Maria Sarah.^[9]

Maria Sarah Deleverio declared that she was once the common-law
wife of Donatilo Agustin before marrying the accused. She had four children with Donatilo among whom being Jesusa (Susan). She said that on 07 April 1994, when her
husband supposedly had sexual intercourse with Roxan, the latter was already in
Lamitan proper with her mother. On 13
May 1994, Maria Sarah was at their house in Maloong Legion. Roxan never told her about the alleged rape,
and she learned for the first time that Roxan and Susan had a complaint for
rape against her husband only on 28 or 29 May 1994 when the police arrested the
accused and brought him to the police station at Lamitan. She would conjecture that the only possible
reason why Susan falsely charged him was because the couple had stopped caring
for the children.^[10]

After trial, the court a quo, presided over by Judge
Salvador Memoracion, rendered its decision, dated 07 December 1994, finding the
accused guilty on two counts of rape. The trial court adjudged:

“WHEREFORE, premises considered, this Court finds the accused, JOSE
DELEVERIO, 58 years old, GUILTY beyond any shadows of doubts of committing two
(2) counts of Rape[s], one committed on April 7, 1994 and the other committed
on May 13, 1994, against his own eight (8) years old grand-step-daughter, Roxan
Binarao which two (2) crimes are defined and penalized under Article 335 of the
Revised Penal Code as amended by Republic Act No. 7659 of 1993 and hereby
sentences him to suffer two (2) extreme and supreme penalties of DEATH.

“And to pay the total amount of P60,000.00 for both cases as
moral damages and the costs of these proceedings.

“IT IS SO ORDERED.”^[11]

In this automatic review, appellant assigned a lone error; i.e.,
that –

“THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT JOSE DELEVERIO
GUILTY BEYOND REASONABLE DOUBT OF HAVING COMMITTED RAPE ON TWO COUNTS”^[12]

and reminded that –

“The Court has stressed time and again that in view of the severity
of the penalties for the offense of rape, justified by the `traumatic
consequences for the unfortunate victim and grievous injury to the peace and
good order of the community, there is need `for extreme care on the part of the
judiciary to avoid an injustice done to an accused. For it is equally true that this is an offense to which, as is
often the case, only two people can testify, thus requiring the most
conscientious effort on the part of the arbiter to weigh and appraised the
conflicting testimony. If a reasonable
doubt exists, the verdict must be one of acquittal. It must be borne in mind that it is an accusation easy to be
made, hard to be proved but harder to be defended by the accused, though
innocent. The evidence for conviction
must be clear and convincing to overcome the constitutional presumption of
innocence.”^[13]

Appellant would consider it rather strange that the complainant
did not even attempt to wake up his brother Ramon, to whom she later confided
the incidents and said to be sleeping all the while in the same room with her,
when she was being sexually assaulted by the accused.^[14]

As usual, in a prosecution for rape, the credibility of the
victim is almost always the single and most important issue to hurdle. If her testimony meets the test of
credibility, the accused can justifiably be convicted on the basis thereof;^[15]
otherwise, he should be acquitted of the crime. Corroborative testimony, frequently unavailable in rape cases, is
not essential to warrant a conviction for the crime.

In the instant case, the trial court gave its own assessment on
the credibility of Roxan; it said:

“This Court also found that this Roxan Binarao, an
eight-year-old-second grade pupil, to be a very competent witness, because her
testimonies, in open Court were not punctured with serious inconsistencies as
to lead this Court to believe that she [had] been coached to make known her
perception of the traumatic incident x x x.

“While it is true that she sometimes commits inconsistencies in her
declaration, but this Court finds that such honest lapses did not impair her
intrinsic credibility as a witness x x x.

“This Court could not find any cogent reasons for this eight (8)
years old girl to accuse her grand-step-father of having raped her. Because of the facts that when she and her
two (2) brothers, Ramon and Rodolfo were staying with the couple in Maloong
Legion, Lamitan, for three (3) years where in fact they attended primary
schooling there, the accused, Jose Deleverio and his wife Maria Sarah
Deleverio, the grandmother of these three (3) children were treating them well
and even considered them as their own children, never punished them, except to
discipline which is very normal attitude between parent and children
relationship. Neither could this Court
[find] any dubious motive on the part of Susan Binarao to induce her small
daughter to file serious charges of rape against her step father who [has] been
very kind to take care of her children while she work[s] or go[es] to Sabah,
Malaysia to look for work.”^[16]

This Court itself has gone over the testimony of Roxan. Like the trial court, we find the child’s
narration of the incident to be as forthright and straightforward as a young
girl of eight years of age can possibly make it. Here is how her testimony goes:

“Q   Before
April 7, 1994 where were you residing?

“A    I
was already staying in Legion.

“Q   Whose
house are you staying?

“A    Their
house.

“Q   You
are referring to the house of the accused and Maria Deleverio, the wife?

“A    Yes,
sir.

“Q   On
April 7, 1994, at about 8:00 o’clock in the evening where were you?

“A    I
was at their house.

“Q   Who
was your companion in the house during that time about the same hour?

“A    We
were only three.

“Q   Who
are the other two companions?

“A    Deleverio
and Ramon.

“Q   This
Deleverio you are referring to the accused in this case?

“A    Yes,
sir.

“Q   What
about your grandmother, the wife of the accused, where was she during that
time?

“A    She
was left in Lamitan.

“Q   Tell
the Court, what happened to you on April 7, 1994 at eight o’clock in the
evening while you were in the house of the accused together with the accused
and your elder brother Ramon?

“A    My
short pants was loosened.

“Q   What
other things did the accused do?

“A    He
poked a knife.

“Q   At
what part of your body?

“A    (Witness
pointing [her] left stomach)

“Q   When
you felt that the accused was taking off your pants and poked a bladed weapon
at your side what did you do?

“A    I
cried.

“Q   What
happened when you cried? What did the
accused do?

“A    He
told me not to tell anybody.

“Q   After
that when he told you not to tell anybody what else did he do to you?

“A    No,
more, sir.

“COURT:

Considering the mentality of the witness,
ask leading question.

“PROS. LEGASPI (continuing his direct):

“Q   Did
the accused [rape] you and [force] you?

“A    Yes,
sir.

“Q   You
said that the accused attacked you and raped you. How did he do it?

“A    He
inserted his penis.

“Q   What
part of your body did he insert his penis?

“A    He
inserted his penis inside my vagina.

“Q   Did
the accused succeed in inserting his penis inside your vagina?

“A    Yes,
sir.

“Q   What
did you feel when he inserted his penis?

“A    I
felt dizzy.

“Q   Then
after that what else did the accused do to you?

“A    No
more.

“x x x                                x x x                                  x x x

“PROS. LEGASPI (continuing his direct):

“Q   On
May 13, 1994 at about nine o’clock in the evening do you recall where were you?

“A    Yes,
sir.

“Q   Where
were you?

“A    I
was at Legion.

“Q   In
whose house were you then?

“A    Residence
of Maria.

“Q   This Maria Deleverio that
you referred to as your grandmother is the wife of the accused Jose Deleverio?

“COURT:

You do not have to repeat and
repeat. You only prolong the trial.

“COURT:

Q    On
May 13, 1994, did the accused do something to you, if he did something?

A     Yes.

Q    What
did he do to you?

A     He
molested me.

Q    When
you say `molest’ what kind of molestation?

A     He
inserted his penis.

“COURT:

Proceed.

“PROS. LEGASPI (continuing his direct):

“Q   What
happened when he inserted his penis to you, what did you feel?

“A    I
cried.

“Q   What
happened afterwards?

“A    No
more.

“Q   Did
you report this matter to your grandmother who is the wife of the accused?

“A    Yes,
sir.

“Q   Then
what did she do to you?

“A    She
did not believe me.

“Q   Since
she did not believe you did you report this matter to any other person?

“A    None.

“Q   What
about your mother?

“A    I
reported to my mother.

“Q   What
did your mother do after you reported this incident?

“A    She
brought me to the police.

“Q   You
were investigated by the police?

“A    Yes,
sir.

“Q   Did
you execute an affidavit before the police relative to this case?

“A    Yes,
sir.

“Q   If
that affidavit is presented to you will you be able to identify it?

“A    Yes,
sir.

“Q   Here
is an affidavit signed by Roxan Benarao, two pages, please go over this affidavit
and tell me if that is the very one?

“A    Yes,
sir (Witness pointed to her signature above her name)

“Q   Whose
signature is this you are pointing to in the same affidavit?

“A   That is my signature.”^[17]

On cross-examination, she has remained steadfast in her
testimony; thus:

“ATTY. BANICO (continuing his cross):

“Q   When
did you report the allege rape to Ramon?

“A    April
7.

“Q   Are
you sure you reported the incident to Ramon on April 7?

“A    Yes,
sir.

“Q   You
reported it to Ramon. If you can
remember, daytime or nighttime?

“A    Daytime.

“Q   How
many hours after the incident of rape did you remember having reported that
incident to your brother Ramon?

“A    Five
Hours.

“Q   What
did you tell Ramon?

“A    I
told Ramon like this, `Ramon, I was molested by Lolo.’

“Q   When
you reported the incident to your brother Ramon, your grandmother Maria
Deleverio was there?

“A    No,
she is not around.

“Q   Why
was she not around?

“A    My
grandmother was in Lamitan sleeping with my mother.

“Q   Did
you tell Ramon, `Ramon, my brother, you go to Lamitan and report the incident
to our mother Susan.’?

“A    None,
sir.

“Q   Did
you ever know, if you know, whether Ramon reported this incident to your
mother?

“A    I
do not know.

“Q   On
April, after the allege incident of rape, did your mother Susan Agustin visit
you at Maloong, Legion?

“A    No,
sir.

“Q   The
whole month of April your mother did not visit you in Legion?

“A    No,
sir.

“Q   Your
mother Susan Agustin [does] not visit you in Maloong, Legion?

“A    Yes,
sir.

“Q   On
April 7, 1994 your grandmother Maria was not in your house in Legion?

“PROS. LEGASPI:

Already answered, your Honor.

“COURT:

She was not there.

“ATTY. BANICO (still on cross):

“Q   However,
your brother Ramon was with you in Legion?

“A    Yes,
sir.

“Q   So,
in other words, [on] the [n]ight of April 7, 1994 in your house in Legion was
your brother Ramon, 13 years old, and the accused Jose Deleverio?

“A    Yes,
sir.

“Q   Wherein,
according to you, the accused Deleverio allegedly raped you you did not shout
to wake up your brother Ramon who was in the house?

“A    None,
sir.

“Q   Where
was Ramon at the time during, according to you, the allege rape?

“A    He
was there but a little bit side of the house.

“Q   Inside
the house?

“A    Inside
the house.

“Q   And
Ramon, your brother, at that time was still awake?

“A    He
was already sleeping, sir.

“Q   How
big is the inside of the house?

“A    Small
house.

“Q   And
where Ramon was sleeping and where the incident happened it was not divided by
a wall, correct?

“A    Yes,
sir.

“Q   Where
Ramon was sleeping and where the incident of allege rape occurred how far was
Ramon?

“A    More
or less about one meter (witness pointing the distance).

“Q   Are
you sure of that, because you are telling the court the truth and you know the
meaning of the truth?

“A    Yes,
sir.

“Q   And
when Ramon was sleeping at the time and when the accused allegedly committed
rape on your person and there was still light inside the house because that was
still very early, eight o’clock?

“A    It
was off.

“Q   And
you told the Court that you informed Ramon about the allege rape, [how many]
hours after did you tell Ramon your brother?

“A    The
following day.

“Q   So
immediately after the allege rape you did not waken up your brother Ramon
Benarao?

“A    No,
sir, the following day already.

“Q   When
you told your brother Ramon the following day did you show to Ramon the wound
on your private part when you told Ramon about what happened last night? You did not show to Ramon the wound on your
private part with bleeding?

“A    No,
sir.

“Q   You
did not also show to Ramon your short pants which according to you was pulled
down by the accused with blood stain, you did not show that to Ramon?

“A    Yes,
I did not show it to Ramon.

“Q   Because
the truth of the matter is that there was no wound on your private part and
there was no blood stain on your short pants?

“A    There
is a wound.

“Q   Where
is that short pants now?

“A    In
Legion.

“Q   That
short pants of your now did not contain any blood stain, correct?

“COURT:

There was no evidence that after being used by the
grandfather she used the short pants.”^[18]

Appellant voices strong concern over complainant’s failure to
shout or raise an outcry during the sexual assault. There is, unfortunately for appellant, no typical reaction or
norm of behavior that ensue forthwith or later from victims of rape. It should be true, most certainly, when
dealing with an innocent and immature child still of tender age. Not yet a woman but only a child who has
been raised in the remote province of Basilan, the victim could not have been
all that accustomed to worldly ways. Just as this Court has observed in one case,^[19]
the –

“x x x moral ascendancy and influence by appellant who is the
stepfather of the 12 year-old victim and threat of bodily harm rendered her
subservient to appellant’s lustful desires. (People vs. Robles, 170 SCRA 557 [1989]; People vs. Alcid, 135 SCRA 280
[1985].) These factors are enough to
explain the absence of an outcry on the part of Josephine immediately before
and during the two occasions when appellant had carnal knowledge of her.

“Besides, only feeble resistance to sexual ravages of this nature
can be expected from a girl of such a tender age. This is precisely the reason why sexual intercourse with a girl
twelve years or under is considered rape without proving force or
intimidation. And, what is the
difference in mental fitness and attitude between a twelve-year-old girl and
one who is twelve years and six months old?

“The victim’s failure to immediately report to her aunt who resided
nearby or to her uncle who passed by the victim’s residence before the
commission of the second rape by appellant in the evening of April 3, 1989
cannot be construed as an implied consent and condonation of what appellant had
done to her. As testified to by the
victim, after appellant raped her, he threatened her that he would kill her and
her mother if she divulged to anyone what he did to her. This threat sowed fear on the part of the
victim for which reason she failed to report the incident to her aunt and
uncle. Nevertheless, when her mother
returned from Sitio Talabaan, Josephine reported to her about the two rapes.”^[20]

It is axiomatic to point out, furthermore, that in an appeal,
where the culpability or innocence of an accused would hinge on the issue of
credibility of witnesses and the veracity of their testimonies, findings of the
trial court are entitled to and given the highest degree of respect. These findings will not ordinarily be
disturbed by an appellate court absent any clear showing that the trial court
has overlooked, misunderstood or misapplied some facts or circumstances of
weight or substance which could very well affect the outcome of the case. The reason for this rule, as the Court has
so repeatedly explained, is an excellent chance on the part of the trial court,
an opportunity that is not equally open to an appellate court, of being able to
personally observe the expression of declarants on the witness stand and their
demeanor under questioning.^[21]

Appellant finds it hard to fathom why Roxan would risk the
possibility of a second rape by not reporting the matter promptly to her mother
or at least sending her brother Ramon to their mother to report at once the
dastardly act perpetrated on her. Appellant concludes that the rape story bears evident signs of having
been merely implanted in the child’s mind by her mother Susan Agustin who,
being a woman of alleged unchaste character, must have been actuated by some
ulterior motive against appellant.

Appellant forgets that Roxan is just a child, an innocent 8-year
old girl, when ravished. As so aptly
explained by the trial court:

“The tender age and immaturity of Roxan Binarao was to say the
least, a victim of unfavorable circumstances not of her own making. And the equanimity or the wisdom of more
mature people cannot be expected from a young and immature little girl like
Roxan Binarao. The delay therefore of
Roxan Binarao in reporting the sexual assaults to her mother Susan Binarao is
understandable and does not affect her credibility as a witness. And this Court could not believe that she
would fabricate a story of sexual molestation against her own step
grandfather.”^[22]

Far from being unnatural and highly
suspect, Roxan’s temporary silence or delay in reporting the incident to her
mother is most understandable. Given
her tender age and near isolation from her mother, coupled with the ascendancy
and influence of appellant, she likely has had a vague idea of what to do. But, typical of a girl her age, she, as soon
as the opportunity presented itself, did reveal to her mother the two
incidents.

It is unfortunate that Roxan’s mother, Susan Agustin, has not
been spared from having her own character unnecessarily impugned. No mother, virtuous or not, will in no event
voluntarily and without compelling reasons put her own daughter to shame and
humiliation.^[23]

The conclusion is inescapable, and it is that the trial court
hardly has erred in finding appellant guilty beyond reasonable doubt of the
crimes charged.

Article 335 of the Revised Penal Code, as amended by Republic Act
No. 7659, provides:

“ART. 335. When and how
rape is committed. – Rape is committed by having carnal knowledge
of a woman under any of the following circumstances.

“1.     By using force or
intimidation;

“2.     When the woman is
deprived of reason or otherwise unconscious; and

“3.     When the woman is
under twelve years of age or is demented.

“The crime of rape shall be punished by reclusion perpetua.

“Whenever the crime of rape is committed with the use of a deadly
weapon or by two or more persons, the penalty shall be reclusion perpetua
to death.

“When by reason or on the occasion of the rape, the victim has
become insane, the penalty shall be death.

“When the rape is attempted or frustrated and a homicide is
committed by reason or on the occasion thereof, the penalty shall be reclusion
perpetua to death.

“When by reason or on the occasion of the rape, a homicide is
committed, the penalty shall be death.

“The death penalty shall also be imposed if the crime of rape is
committed with any of the following attendant circumstances:

“1.          When the
victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within
the third civil degree, or the common-law spouse of the parent of the victim.

“2.          When the victim
is under the custody of the police or military authorities.

“3.          When the rape is
committed in full view of the husband, parent, any of the children or other
relatives within the third degree of consanguinity.

“4.          When the victim
is a religious or a child below seven (7) years old.

“5.          When the offender
knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS)
disease.

“6.          When committed by
any member of the Armed Forces of the Philippines or the Philippine National
Police or any law enforcement agency.

“7.          When by reason or
on the occasion of the rape, the victim has suffered permanent physical
mutilation. (As amended by Sec. 11,
RA 7659.)”

The mandatory death penalty is imposed under the first
case, immediately above, when the victim is under eighteen years of age and the
offender is “a parent, ascendant, step parent, guardian, relative by
consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent of the victim.” The trial court has thus held incorrectly in considering appellant, who
is legally married to Roxan’s natural grandmother, as among those named in the
enumeration. Appellant is merely a
step-grandparent who obviously is neither an “ascendant” nor a
“step-parent” of the victim. In the recent case of People vs. Atop,^[24]
the Court rejected the application of the mandatory death penalty to the rape
of a 12-year old victim by the common-law husband of the girl’s
grandmother. The Court said:

“It is a basic rule of statutory construction that penal
statutes are to be liberally construed in favor of the accused. Court’s must not bring cases within the
provision of a law which are not clearly embraced by it. No act can be pronounced criminal which is
not clearly made so by statute; so, too, no person who is not clearly within
the terms of a statute can be brought within them. Any reasonable doubt must be resolved in
favor of the accused.”

The award to the victim of “the total amount of P60,000.00
for both cases as moral damages” should be deleted, said damages not
having been independently established; instead, appellant should be ordered to
pay, consistent with prevailing jurisprudence,^[25]
an indemnity to the victim of P50,000.00 for each count of rape.

WHEREFORE, the appealed decision finding appellant JOSE
DELEVERIO guilty beyond reasonable doubt of two counts of rape is AFFIRMED with
the MODIFICATIONS that the two death sentences imposed by the court a quo
are both reduced to reclusion perpetua, and appellant is ordered to pay,
instead of the P60,000.00 moral damages awarded by the court a quo,
an indemnity of P50,000.00 for each count of rape.

Costs against accused-appellant.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur.

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