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EN BANC
G.R. Nos. 132875-76. November 16, 2001
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.,ROMEO G. JALOSJOS, Accused-Appellant.
D E C I S I O N
YNARES-SANTIAGO, J.:
This Court has declared that thestate policy on the heinous offense of rape is clear and unmistakable. Under certain circ*mstances, some of thempresent in this case, the offender may be sentenced to a long period ofconfinement, or he may suffer death.The crime is an assault on human dignity. No legal system worthy of the name can afford to ignore thetraumatic consequences for the unfortunate victim and grievous injury to thepeace and good order of the community.1cräläwvirtualibräry
Rape is particularly odious, onewhich figuratively scrapes the bottom of the barrel of moral depravity, whencommitted against a minor.2cräläwvirtualibräry
In view of the intrinsic nature ofthe crime of rape where only two persons are usually involved, the testimony ofthe complainant is always scrutinized with extreme caution.3cräläwvirtualibräry
In the present case, there arecertain particulars which impelled the court to devote an even more painstakingand meticulous examination of the facts on record and a similarly conscientiousevaluation of the arguments of the parties.The victim of rape in this case is a minor below twelve (12) years ofa*ge. As narrated by her, the details ofthe rape are mesmerically sordid and repulsive. The victim was peddled for commercial sex by her own guardianwhom she treated as a foster father.Because the complainant was a willing victim, the acts of rape werepreceded by several acts of lasciviousness on distinctly separate occasions. The accused is also a most unlikelyrapist. He is a member ofCongress. Inspite of his having beencharged and convicted by the trial court for statutory rape, his constituentsliked him so much that they knowingly re-elected him to his congressionaloffice, the duties of which he could not perform.
Statutory rape committed by adistinguished Congressman on an eleven (11) year old commercial sex worker isbound to attract widespread media and public attention. In the words of accused-appellant, he hasbeen demonized in the press most unfairly, his image transmogrified into thatof a dastardly, ogre, out to get his slimy hands on innocent and nave girls tosatiate his lustful desires.4 This Court, therefore,punctiliously considered accused-appellants claim that he sufferedinvidiously discriminatory treatment.Regarding the above allegation, the Court has ascertained that theextensive publicity generated by the case did not result in a mistrial; therecords show that the accused had ample and free opportunity to adduce hisdefenses.
This is an appeal from thedecision5 of the Regional Trial Courtof Makati, Branch 62, in Criminal Case Nos. 96-1985 and 96-1986, convictingaccused-appellant Romeo Jalosjos of two (2) counts of statutory rape, and inCriminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993,for six (6) counts of acts of lasciviousness defined and penalized underArticle 336 of the Revised Penal Code, in relation to Section 5(b) of RepublicAct No. 7610, also known as the Child Abuse Law.
There were six (6) other cases,Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998,where the accused-appellant was acquitted of the charges of acts oflasciviousness for failure of the prosecution to prove his guilt beyondreasonable doubt.
On December 16, 1996, two (2)informations for the crime of statutory rape; and twelve (12) for acts oflasciviousness defined and penalized under Article 336 of the Revised PenalCode, in relation to Section 5(b) of Republic Act No. 7610, were filed againstaccused-appellant. The accusatoryportion of said informations for the crime of statutory rape state:
In Criminal Case No. 96-1985:
The undersigned, upon prior sworn complaint by the offended party,eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of thecrime of RAPE defined and penalized under Art. 335 (3) of the Revised PenalCode, committed as follows:
That on or about June 18, 1996 at Room No.1702, Ritz Towers, MakatiCity, and within the jurisdiction of this Honorable Court, the above-namedaccused, did then and there willfully, unlawfully and feloniously have carnalknowledge with (sic) eleven year old minor Rosilyn Delantar against herwill, with damage and prejudice.
CONTRARY TO LAW.6cräläwvirtualibräry
In Criminal Case No. 96-1986:
The undersigned, upon prior sworn complaint by the offended party,eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of thecrime of RAPE defined and penalized under Art. 335 (3) of the Revised PenalCode, committed as follows:
That on or about June 20, 1996 at Room No. 1702, Ritz Towers,Makati City, and within the jurisdiction of this Honorable Court, theabove-named accused, did then and there willfully, unlawfully and feloniouslyhave carnal knowledge with (sic) eleven year old minor Rosilyn Delantaragainst her will, with damage and prejudice.
CONTRARY TO LAW.7cräläwvirtualibräry
For acts of lasciviousness, theinformations8 under whichaccused-appellant was convicted were identical except for the different datesof commission on June 14, 1996; June 15, 1996; June 16, 1996; June 20, 1996;June 21, 1996; and June 22, 1996, to wit:
The undersigned, upon prior sworn complaint by the offended party,eleven (11)-year old minor ROSILYN DELANTAR accuses ROMEO JALOSJOS of the crimeof ACTS OF LASCIVIOUSNESS in relation to Section 5 (b), Article III of RepublicAct No. 7610, otherwise known as the Special Protection of Children againstAbuse, Exploitation and Discrimination Act, committed as follows:
That in the evening of June 14, 1996, or thereabout, in Room No.1702, Ritz Towers, Makati City, Metro-Manila and within the jurisdiction ofthis Honorable Court, the above-named accused, with lewd design, did then andthere wilfully, unlawfully and feloniously kiss, caress and fondle saidcomplainant's face, lips, neck, breasts, whole body, and vagin*, suck hernipples and insert his finger and then his tongue into her vagin*, placehimself on top of her, then insert his penis in between her thighs untilejacul*tion, and other similar lascivious conduct against her will, to her damageand prejudice.
CONTRARY TO LAW.
In Criminal Cases Nos. 96-1988;96-1990; and 96-1993, there were added averments that on the different dates,the accused gave the complainant P10,000.00, P5,000.00 and P5,000.00respectively.
Upon arraignment on January 29,1997, accused-appellant refused to enter a plea. Hence, the trial court entered a plea of not guilty for him. At the trial, the prosecution presentedeight (8) main witnesses and seven (7) rebuttal witnesses as well asdocumentary evidences marked as Exhibits A to EEEE, inclusive ofsubmarkings. The defense, on the otherhand presented twenty-six (26) witnesses.Its documentary evidence consists of Exhibits 1 to 153, inclusive ofsubmarkings. The records of the caseare extremely voluminous.
The Peoples version of the facts,culled mainly from the testimony of the victim, are as follows:
Maria Rosilyn Delantar was a slim,eleven-year old lass with long, straight black hair and almond-shaped blackeyes. She grew up in a two-storeyapartment in Pasay City under the care of Simplicio Delantar, whom she treatedas her own father. Simplicio was afifty-six year old hom*osexual whose ostensible source of income was selling longganizaand tocino and accepting boarders at his house. On the side, he was also engaged in the skintrade as a pimp.
Rosilyn never got to see hermother, though she had known a younger brother, Shandro, who was also under thecare of Simplicio. At a very young ageof 5, fair and smooth-complexioned Rosilyn was exposed by Simplicio to hisillicit activities. She and her brotherwould tag along with Simplicio whenever he delivered prostitutes to hisclients. When she turned 9, Rosilyn wasoffered by Simplicio as a prostitute to an Arabian national known as Mr.Hammond. Thus begun her ordeal as oneof the girls sold by Simplicio for sexual favors.
Rosilyn first metaccused-appellant, Romeo Jalosjos, sometime in February 1996 at his officelocated near Robinsons Galleria.Rosilyn and Simplicio were brought there and introduced by a talentmanager by the name of Eduardo Suarez.Accused-appellant promised to help Rosilyn become an actress. When he saw Rosilyn, accused-appellant askedhow old she was. Simplicio answered,10. She is going to be 11 on May 11. Accused-appellant inquired if Rosilyn knowshow to sing. Simplicio told Rosilyn tosing, so she sang the song, Tell Me You Love Me. Accused-appellant then asked if Rosilyn has nice legs and thenraised her skirt up to the mid-thighs.He asked if she was already menstruating, and Simplicio said yes. Accused-appellant further inquired ifRosilyn already had breasts. Whennobody answered, accused-appellant cupped Rosilyns left breast. Thereafter, accused-appellant assured themthat he would help Rosilyn become an actress as he was one of the producers ofthe TV programs, Valiente and Eat Bulaga.
Simplicio and Suarez thendiscussed the execution of a contract for Rosilyns movie career. Accused-appellant, on the other hand, saidthat he would adopt Rosilyn and that the latter would have to live with him inhis condominium at the Ritz Towers.Before Simplicio and Rosilyn went home, accused-appellant gave RosilynP2,000.00.
The second time Rosilyn metaccused-appellant was at his condominium unit, located at Room 1702, RitzTowers, Makati City. Accused-appellant and Simplicio discussed the contract andhis plan to finance Rosilyns studies.Accused-appellant gave Simplicio P500.00, thereafter, Rosilyn, Shandroand Simplicio left.
The third meeting between Rosilynand accused-appellant was also at Ritz Towers to discuss her actingcareer. Accused-appellant referred thepreparation of Rosilyns contract to his lawyer, who was also present. After the meeting, Simplicio and Rosilynleft. As they were walking towards theelevator, accused-appellant approached them and gave Rosilyn P3,000.00.
On June 14, 1996, at about 8:30 to9:00 p.m., Simplicio and Rosilyn returned to accused-appellants condominiumunit at Ritz Towers. When accused-appellant came out of his bedroom, Simpliciotold Rosilyn to go inside the bedroom, while he and accused-appellant stayedoutside. After a while,accused-appellant entered the bedroom and found Rosilyn watching television. He walked towards Rosilyn and kissed her onthe lips, then left the room again.Simplicio came in and bid her goodbye.Rosilyn told Simplicio that accused-appellant kissed her to whichSimplicio replied, Halik lang naman.
Rosilyn was left alone in thebedroom watching television. After sometime, accused-appellant came in and entered the bathroom. He came out clad in a long white T-shirt onwhich was printed the word, Dakak.In his hand was a plain white T-shirt.Accused-appellant told Rosilyn that he wanted to change herclothes. Rosilyn protested and toldaccused-appellant that she can do it herself, but accused-appellant answered, Daddymo naman ako. Accused-appellantthen took off Rosilyns blouse and skirt.When he was about to take off her panties, Rosilyn said, Huwag po.Again, accused-appellant told her, After all, I am your Daddy.Accused-appellant then removed her panties and dressed her with the long whiteT-shirt.
The two of them watched televisionin bed. After sometime,accused-appellant turned off the lamp and the television. He turned to Rosilyn and kissed herlips. He then raised her shirt, touchedher breasts and inserted his finger into her vagin*. Rosilyn felt pain and cried out, Tama na po. Accused-appellant stopped. He continued to kiss her lips and fondle herbreasts. Later, accused-appellant toldRosilyn to sleep.
The following morning, Rosilyn wasawakened by accused-appellant whom she found bent over and kissing her. He told her to get up, took her hand and ledher to the bathroom. He removedRosilyns shirt and gave her a bath. While accused-appellant rubbed soap allover Rosilyns body, he caressed her breasts and inserted his finger into hervagin*. After that, he rinsed her body,dried her with a towel and applied lotion on her arms and legs. Then, he dried her hair and told her todress up. Rosilyn put on her clothesand went out of the bathroom, while accused-appellant took a shower.
Accused-appellant ate breakfastwhile Rosilyn stayed in the bedroom watching television. When accused-appellant entered the room, heknelt in front of her, removed her panties and placed her legs on hisshoulders. Then, he placed his tongueon her vagin*. Thereafter, he gaveRosilyn P10,000.00 and told his housemaid to take her shopping atShoemart. When she returned to the RitzTowers, Simplicio was waiting for her.The two of them went home.Rosilyn narrated to Simplicio what accused-appellant did to her, andpleaded for him not to bring her back to the Ritz Towers. Simplicio told her that everything wasalright as long as accused-appellant does not have sexual intercourse with her.
That same evening, at around 9:00to 9:30 in the evening, Simplicio again brought Rosilyn to the Ritz Towers.After Simplicio left, accused-appellant removed Rosilyns clothes and dressedher with the same long T-shirt. Theywatched television for a while, then accused-appellant sat beside Rosilyn andkissed her on the lips. He made Rosilynlie down, lifted her shirt above her breasts, and inserted his finger into hervagin*. Then, accused-appellant removedhis own clothes, placed his penis between Rosilyns thighs and made thrustingmotions until he ejacul*ted on her thighs.Thereafter, accused-appellant kissed her and told her to sleep.
The next day, June 16, 1996,accused-appellant roused her from sleep and bathed her. Again, he rubbed soap all over her body,washed her hair, and thereafter rinsed her body and dried her hair. While accused-appellant was bathing Rosilyn,he asked her to fondle his penis while he caressed her breasts and inserted hisfinger into her vagin*. After theirshower, accused-appellant ate breakfast.He gave Rosilyn P5,000.00 and told her to just wait for Simplicio in thecondominium unit. On their way home,Simplicio told Rosilyn that if accused-appellant tries to insert his penis intoher vagin*, she should refuse.
At around 8:00 p.m. of June 18,1996, Simplicio brought Rosilyn to the Ritz Towers. They found accused-appellant sitting on the bed in hisbedroom. Simplicio told Rosilyn toapproach accused-appellant, then he left.Accused-appellant took off Rosilyns clothes and dressed her with a longT-shirt on which was printed a picture of accused-appellant and a woman, withthe caption, Cong. Jalosjos with his Toy.They watched television for a while, then accused-appellant lay besideRosilyn and kissed her on the lips. Heraised her shirt and parted her legs.He positioned himself between the spread legs of Rosilyn, took off hisown shirt, held his penis, and poked and pressed the same against Rosilynsvagin*. This caused Rosilyn pain insideher sex organ. Thereafter,accused-appellant fondled her breasts and told her to sleep.
When Rosilyn woke up the followingmorning, June 19, 1996, accused-appellant was no longer around but she foundP5,000.00 on the table. Earlier thatmorning, she had felt somebody touching her private parts but she was still toosleepy to find out who it was. Rosilyn tooka bath, then went off to school with Simplicio, who arrived to fetch her.
The next encounter of Rosilyn withaccused-appellant was on June 21, 1996, at about 9:00 oclock in the evening inhis bedroom at the Ritz Towers.Accused-appellant stripped her naked and again put on her the long shirthe wanted her to wear. After watchingtelevision for a while, accused-appellant knelt beside Rosilyn, raised hershirt, caressed her breasts and inserted his finger into her vagin*. Then, he clipped his penis between Rosilynsthighs, and made thrusting motions until he ejacul*ted. Thereafter, Rosilyn went to sleep.
The next day, June 22, 1996,Rosilyn was awakened by accused-appellant who was kissing her and fondling hersex organ. She, however, ignored himand went back to sleep. When she wokeup, she found the P5,000.00 which accused-appellant left and gave the same toSimplicio Delantar, when the latter came to pick her up.
On June 29, 1996, Rosilyn againwent to the Ritz Towers. During thatvisit, accused-appellant took photographs of Rosilyn. He asked her to pose with her T-shirt pulled down therebyexposing her breasts. He also took herphotographs with her T-shirt rolled up to the pelvis but without showing herpubis, and finally, while straddled on a chair facing the backrest, showing herlegs.
Before Rosilyn went to sleep, accused-appellantkissed her lips, fondled her breasts and inserted his finger into hervagin*. The following morning, she wokeup and found the P5,000.00 left by accused-appellant on the table. She recalled that earlier that morning, shefelt somebody caressing her breasts and sex organ.
On July 2, 1996 at 7:00 p.m.,Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn had to wait for accused-appellant, who arrived between12:00 to 1:00 a.m. He again dressed herwith the long white shirt similar to what he was wearing. While sitting on the bed, accused-appellantkissed her lips and inserted his tongue into her mouth. He then fondled her breasts and inserted hisfinger into her vagin*, causing her to cry in pain. Accused-appellant stopped and told her to sleep.
The next morning,accused-appellant bathed her again.While he soaped her body, he fondled her breasts and inserted his fingerin her vagin*. Rosilyn felt pain andshoved his hand away. After bathingher, accused-appellant had breakfast. Beforehe left, he gave Rosilyn P5,000.00. Assoon as Simplicio arrived, Rosilyn gave her the money and then they left forschool.
On July 20, 1996, Simplicio againbrought Rosilyn to the Ritz Towers.Accused-appellant was waiting in his bedroom. He took off Rosilyns clothes, including her panties, and dressedher with a long T-shirt similar to what he was wearing. After watching television, accused-appellantkissed Rosilyn on the lips, inserted his tongue in her mouth and fondled herbreasts. Then, he made Rosilyn lie onthe bed, spread her legs apart and placed a pillow under her back. He inserted his finger in her vagin* andmounted himself between her legs with his hands rested on her sides. After that, he lifted his shirt, thenpointed and pressed his penis against her vagin*. Accused-appellant made thrusting motions, which caused Rosilynpain. Thereafter, accused-appellanttold her to sleep.
In the early morning of July 21,1996, Rosilyn felt somebody touching her sex organ, but she did not wakeup. When she woke up later, she foundP5,000.00 on the table, and she gave this to Simplicio when he came to fetchher.
On August 15, 1996, Rosilyn andSimplicio went to the Ritz Towers at around 7:00 p.m. Accused-appellant was about to leave, so he told them to comeback later that evening. The two didnot return.
The following day, Rosilyn ranaway from home with the help of Yamie Estreta, one of their boarders. Yamie accompanied Rosilyn to the Pasay CityPolice, where she executed a sworn statement against Simplicio Delantar. Rosilyn was thereafter taken to the custodyof the Department of Social Welfare and Development (DSWD). The National Bureau of Investigation (NBI)conducted an investigation, which eventually led to the filing of criminal chargesagainst accused-appellant.
On August 23, 1996, Rosilyn wasexamined by Dr. Emmanuel L. Aranas at Camp Crame. The examination yielded the following results:
EXTERNAL AND EXTRAGENITAL
Fairly developed, fairly nourished and coherent femalesubject. Breasts are conical withpinkish brown areola and nipples from which no secretions could be pressedout. Abdomen is flat and soft
GENITAL
There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pinkishbrown labia minora presenting in between.On separating the same disclosed an elastic, fleshy type hymen, withshallow healed laceration at 3 o'clock position and deep healed laceration at 8o'clock position. External vagin*lorifice offers moderate resistance to the introduction of the examining indexfinger and the virgin sized vagin*l speculum.vagin*l canal is narrow with prominent rugosities. Cervix is firm and closed.
CONCLUSION:
Subject is in non-virgin state physically.
There are no external signs of application of any form of violence.9cräläwvirtualibräry
During the trial,accused-appellant raised the defense of denial and alibi. He claimed that it was his brother,Dominador Jun Jalosjos, whom Rosilyn had met, once at accused-appellantsDakak office and twice at the Ritz Towers.Accused-appellant insisted that he was in the province on the datesRosilyn claimed to have been sexually abused.He attributed the filing of the charges against him to a small group ofblackmailers who wanted to extort money from him, and to his politicalopponents, particularly Ex-Congressman Artemio Adaza, who are allegedlydetermined to destroy his political career and boost their personal agenda.
More specifically,accused-appellant claims that on June 16, 1996, he was on the PhilippineAirlines (PAL) 9:40 a.m. flight from Manila to Dipolog. He stayed in Dipolog until June 18,1996. He submitted in evidence airlineticket no. 10792424,10 showing that he was onboard Flight PR 165; the said flights passengers manifest,11 where the name JALOSJOS/RM/MRappears; and photographs showing accused-appellants constituents welcoming hisarrival and showing accused-appellant talking with former Mayor HermanicoCarreon and Fiscal Empainado.
Accused-appellant further allegesthat on June 28, 1996, he again took the 9:40 a.m. flight from Manila toDipolog City. On the same flight, hemet Armando Nocom of the Philippine Daily Inquirer. Upon arrival and after talking to his representatives, heproceeded to his residence known as Barangay House in Taguinon, Dapitan, nearDakak Beach resort, and spent the night there.
On June 29, 1996,accused-appellant attended the fiesta at Barangay San Pedro. He stayed in the house of Barangay CaptainMila Yap until 5:30 p.m. Then, togetherwith some friends, he visited the Rizal Shrine and the Pirate Bar at DakakBeach Resort. Thereafter, he retired inthe Barangay House in Taguilon.
On June 30, 1996,accused-appellant alleges that he attended a city-wide consultation with hispolitical leaders at the Blue Room of Dakak, which lasted till theafternoon. In the evening, he went homeand slept in the Barangay House.
On July 1, 1996, he attended thewhole day celebration of Dipolog Day.He spent the night in the Barangay House.
On July 2, 1996, he attended theinauguration of the reception hall of Dakak Beach Resort. The blessing ceremony was officiated byAssistant Parish Priest Adelmo Laput.
On July 3, 1996, he was the guestin the inaguration of the 3rd Engineering District of Dapitan City. After the mass, he visited the Jamboree sitein Barangay Taguilon, Dapitan City.
He further contended that afterhis arrival in Dipolog on June 28, 1996, there was never an instance when hewent to Manila until July 9, 1996, when he attended a conference called by thePresident of the Philippines.
Accused-appellant likewise allegedthat on July 21, 1996, he took the 5:00 a.m. flight of PAL from Manila toDumaguete City. From there, he wasflown by a private plane to Dipolog, where he stayed until the President of thePhilippines arrived.
To buttress the theory of thedefense, Dominador Jun Jalosjos testified that he was the one, and notaccused-appellant, whom Rosilyn met on three occasions. These occurred once during the first week ofMay 1996, at accused-appellants Dakak office where Rosilyn and SimplicioDelantar were introduced to him by Eduardo Suarez, and twice at the Ritz Towerswhen he interviewed Rosilyn, and later when Rosilyn and Simplicio followed upthe proposed entry of Rosilyn into the show business.
Dominadors admission of hismeetings with Rosilyn on three instances were limited to interviewing her andassessing her singing and modeling potentials. His testimony made no mention ofany sexual encounter with Rosilyn.
After trial, the court renderedthe assailed decision, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered asfollows:
1. In Criminal Cases Nos.96-1985 and 96-1986, the prosecution has proven beyond reasonable doubt theguilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in the two (2)counts of statutory rape defined and penalized under Article 335 of the RevisedPenal Code. He is hereby declaredCONVICTED in each of these cases.
2. Accordingly, he issentenced to:
2a. suffer the penalty of reclusionperpetua in each of these cases.
2b. indemnify the victim,MA. ROSILYN DELANTAR, in the amount of FIFTY THOUSAND PESOS (P50,000.00) asmoral damages for each of the cases.
3. In Criminal Cases Nos.96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-1993, the prosecution hasproven beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS yGARCIA, as principal in six (6) counts of acts of lasciviousness defined underArticle 336 of the Revised Penal Code and penalized under Section 5 (b) of R.A.7610 otherwise known as the Child Abuse Law.He is hereby declared CONVICTED in each of these cases;
4. Accordingly he issentenced to:
4.a. suffer in each of thecases an indeterminate prison term of from eight (8) years, eight (8) monthsand one (1) day of prision mayor in its medium period, as maximum, tofifteen (15) years, six (6) months and twenty (20) days of reclusiontemporal in its medium period, as maximum;
4.b. indemnify the victim,MA ROSILYN DELANTAR, in the amount of TWENTY THOUSAND (P20,000.00) as moraldamages for each of the cases;
5. In Criminal Case Nos.96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-1998, the prosecution hasfailed to prove beyond reasonable doubt the guilt of the accused, ROMEOJALOSJOS y GARCIA, in six (6) counts of acts of lasciviousness. Therefore, on the ground of reasonabledoubt, the accused in these cases is hereby ACQUITTED.
SO ORDERED.12cräläwvirtualibräry
Hence, the instant appeal. Accused-appellant contends:
A.
THE TRIAL COURTGRIEVOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON TESTIMONY OF THEPRIVATE COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA OF INCONSISTENCIES ANDUNTRUTHS.
B.
THE TRIAL COURTGRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF THE CONFLICTING STATEMENTSGIVEN BY THE PRIVATE COMPLAINANT.
C.
THE TRIAL COURTGRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF PRIVATE COMPLAINANTSFAILURE TO IDENTIFY THE ACCUSED-APPELLANT.
D.
THE TRIAL COURTGRIEVOUSLY ERRED IN RULING THAT THE PRIVATE COMPLAINANT WAS A MINOR LESS THANTWELVE YEARS OF AGE WHEN THE CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE.
E.
THE TRIAL COURTGRIEVOUSLY ERRED IN FINDING THAT RAPE WAS COMMITTED AGAINST THE PRIVATECOMPLAINANT.13cräläwvirtualibräry
In this jurisdiction, the testimonyof the private complainant in rape cases is scrutinized with utmostcaution. The constitutional presumptionof innocence requires no less than moral certainty beyond any scintilla ofdoubt. This applies with more vigor inrape cases where the evidence for the prosecution must stand or fall on its ownmerits and is not allowed to draw strength from the weakness of the evidence ofthe defense. As an inevitableconsequence, it is the rape victim herself that is actually put on trial. The case at bar is no exception. Bent on destroying the veracity of privatecomplainants testimony, the errors assigned by accused-appellant, particularlythe first three, are focused on the issue of credibility.
Accused-appellant makes much ofhis acquittal in Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996,96-1997, and 96-1998, for acts of lasciviousness. According to him, the fact that the trial court sustained hisdefense of alibi in the said cases only shows that Rosilyn concocted herstories and the rest of her testimony ought not to be believed. Stated differently, accused-appellant urgesthe application of the doctrine of "falsus in uno falsus in omnibus (falsein part, false in everything).14cräläwvirtualibräry
The contention is withoutmerit. Falsus in uno falsus in omnibusis not an absolute rule of law and is in fact rarely applied in modernjurisprudence.15 Thus, in People v.Yanson-Dumancas,16 citing People v. Li BunJuan,17 this Court held that:
... In this connection it must be borne in mind that the principlefalsus in uno falsus in omnibus is not an absolute one, and that it isperfectly reasonable to believe the testimony of a witness with respect to somefacts and disbelieve it with respect to other facts. In People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the followingwas quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23:
18. Testimony may bepartly credited and partly rejected. --- Trier of facts are not bound tobelieve all that any witness has said; they may accept some portions of histestimony and reject other portions, according to what seems to them, uponother facts and circ*mstances to be the truth Even when witnesses are found tohave deliberately falsified in some material particulars, the jury are notrequired to reject the whole of their uncorroborated testimony, but may creditsuch portions as they deem worthy of belief. (p. 945)18cräläwvirtualibräry
Being in the best position todiscriminate between the truth and the falsehood, the trial court's assignmentof values and weight on the testimony of Rosilyn should be given credence. Significantly, it should be borne in mindthat the issue at hand hinges on credibility, the assessment of which, asoft-repeated, is best made by the trial court because of its untrammeledopportunity to observe her demeanor on the witness stand.
On the demeanor and manner oftestifying shown by the complainant, the trial court stated:
Guided by the foregoing principles, this court found no reason whyit should not believe Rosilyn when she claimed she was raped. Testimonies of rape victims especially thosewho are young and immature deserve full credence (People v. Liquiran, 228 SCRA62 (1993) considering that no woman would concoct a story of defloration,allow an examination of her private parts and thereafter allow herself to beperverted in a public trial if she was not motivated solely by the desire tohave the culprit apprehended and punished.(People v. Buyok, 235 SCRA 622 [1996]).
When asked to describe what had been done to her, Rosilyn was ableto narrate spontaneously in detail how she was sexually abused. Her testimony in this regard was firm,candid, clear and straightforward, and it remained to be so even during theintense and rigid cross-examination made by the defense counsel.19cräläwvirtualibräry
Accused-appellant next argues thatRosilyns direct and redirect testimonies were rehearsed and lacking incandidness. He points to the supposedhesitant and even idiotic answers of Rosilyn on cross and re-crossexaminations. He added that she wastrained to give answers such as, Ano po?, Parang po, Medyo po, andSa tingin ko po.
Accused-appellants arguments arefar from persuasive. A reading of thepertinent transcript of stenographic notes reveals that Rosilyn was in factfirm and consistent on the fact of rape and lascivious conduct committed on herby accused-appellant. She answered inclear, simple and natural words customary of children of her age. The above phrases quoted by accused-appellantas uttered by Rosilyn are, as correctly pointed out by the Solicitor General,typical answers of child witnesses like her.
At any rate, even assuming thatRosilyn, during her lengthy ordeals on the witness stand, may have given someambiguous answers, they refer merely to minor and peripheral details which donot in any way detract from her firm and straightforward declaration that shehad been molested and subjected to lascivious conduct byaccused-appellant. Moreover, it shouldbe borne in mind that even the most candid witness oftentimes makes mistakesand confused statements. At times, farfrom eroding the effectiveness of the evidence, such lapses could, indeed,constitute signs of veracity.20cräläwvirtualibräry
Then, too, accused-appellantcapitalizes on the alleged absence of any allegation of rape in the five (5)sworn statements executed by Rosilyn as well as in the interviews and casestudy conducted by the representatives of the DSWD. In particular, accused-appellant points to the followingdocuments:
(1) Sworn statements datedAugust 22 and 26, 1996, executed before SPO5 Milagros A. Carrasco of the PasayCity Police;
(2) Sworn statements datedSeptember 5, 11, and 19, 1996, executed before NBI Agents Cynthia L. Marianoand Supervising NBI Agent Arlis E. Vela;
(3) The Initial Interview ofRosilyn by the DSWD dated August 30, 1996;
(4) DSWD Final Case StudyReport dated January 10, 1997.
It must be stressed that rape isa technical term, the precise and accurate definition of which could not havebeen understood by Rosilyn. Indeed,without the assistance of a lawyer, who could explain to her the intricacies ofrape, she expectedly could not distinguish in her affidavits and consequentlydisclose with proficient exactitude the act or acts of accused-appellant thatunder the contemplation of law constitute the crime of rape. This is especially true in the present casewhere there was no exhaustive and clear-cut evidence of full and completepenetration of the victims vagin*. Itmay well be that Rosilyn thought, as any layman would probably do, that theremust be the fullest penetration of the victims vagin* to qualify a sexual actto rape.
In People v. Campuhan,21 we ruled that rape isconsummated by the slightest penetration of the female organ, i.e.,touching of either labia of the pudendum by the penis. There need not be fulland complete penetration of the victims vagin* for rape to beconsummated. There being no showingthat the foregoing technicalities of rape was fully explained to Rosilyn on allthose occasions that she was interviewed by the police, the NBI agents and DSWDsocial workers, she could not therefore be expected to intelligibly declarethat accused-appellants act of pressing his sex organ against her labiawithout full entry of the vagin*l canal amounted to rape.
In the decision of the trialcourt, the testimony on one of the rapes is cited plus the courts mention ofthe jurisprudence on this issue, to wit:
Q: You said that whenCongressman Jalosjos inserted his finger into your vagin*, your back was restedon a pillow and your legs were spread wide apart, what else did he do?
A: He lifted his shirt, andheld his penis; and again idinikit-dikit niya ang ari niya sa ari ko. (underscoring supplied)
Q: And, after doing that:Idinikit-dikit niya yong ari niya sa ari ko; what else did he do?
A: After that, Itinutokniya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko. (underscoring supplied)
(pp. 23, 25 to 30, TSN, 16 April 1997)
It is well-entrenched in this jurisdiction that rape can becommitted even without full penetration of the male organ into the vagin* ofthe woman. It is enough that there beproof of the entrance of the male organ within the labia of the pudendum of thefemale organ. (People vs. Mangalino,182 SCRA 329; People vs. Tismo, 204 SCRA 535; People vs. Bacani, 181 SCRA393). Penetration of the penis byentry into the lips of the female organ suffices to warrant a conviction. (People vs. Galimba, G.R. No. 111563-64,February 20, 1996 citing People vs. Abonada, 169 SCRA 530). Hence, with the testimony of Rosilyn thatthe accused pressed against (idiniin) and pointed to (itinutok) Rosilynsvagin* his sexual organ on two (2) occasions, two (2) acts of rape wereconsummated.22cräläwvirtualibräry
Moreover, it must be borne in mindthat Rosilyns purpose in executing the affidavits on August 22 and 26, 1996before the Pasay City Police was to charge Simplicio Delantar, notaccused-appellant. As aptly pointed outby the trial court, it is preposterous to expect Rosilyn to make an exhaustivenarration of the sexual abuse of accused-appellant when he was not the objectof the said complaint.
Additionally, Rosilynsstatements, given to the NBI on September 11 and 19, 1996, concerned mainly theidentification of pictures. There wasthus no occasion for her to narrate the details of her sexual encounter withaccused-appellant.
As to the interviews and studiesconducted by the DSWD, suffice it to state that said meetings with Rosilyn werespecially focused on the emotional and psychological repercussions of thesexual abuse on Rosilyn, and had nothing to do with the legal actions beingprepared as a consequence thereof.Thus, the documents pertaining to said interviews and studies cannot berelied upon to reveal every minute aspect of the sexual molestations complainedof.
At any rate, the inconsistenciesbetween the affidavits and Rosilyns testimony, if at all they existed, cannotdiminish the probative value of Rosilyns declarations on the witnessstand. The consistent ruling of thisCourt is that, if there is an inconsistency between the affidavit of a witnessand her testimonies given in open court, the latter commands greater weightthan the former.23cräläwvirtualibräry
In the third assigned error,accused-appellant attempts to impress upon this Court that Rosilyn gave thename Congressman Romeo Jalosjos as her abuser only because that was the namegiven to her by the person to whom she was introduced. That same name, accused-appellant claims,was merely picked up by Rosilyn from the name plate, plaque, and memo pad shesaw on accused-appellants office desk.Accused-appellant presented his brother, Dominador Jun Jalosjos, in anattempt to cast doubt on his culpability.It was Dominador Jun Jalosjos who allegedly met and interviewed Rosilynat the Dakak office. In advancement ofthis theory, accused-appellant cites the fact that out of a total of 16pictures presented to Rosilyn for identification, she picked up only 4, whichdepict Dominador Jun Jalosjos. In thesame vein, accused-appellant claims that the resulting cartographic sketch fromthe facial characteristics given by Rosilyn to the cartographer, resembles thefacial appearance of Dominador Jun Jalosjos.Accused-appellant also points out that Rosilyn failed to give his correctage or state that he has a mole on his lower right jaw.
Contrary to the contentions ofaccused-appellant, the records reveal that Rosilyn positively andunhesitatingly identified accused-appellant at the courtroom. Such identification during the trial cannotbe diminished by the fact that in her sworn statement, Rosilyn referred toaccused-appellant as her abuser based on the name she heard from the person towhom she was introduced and on the name she saw and read in accused-appellantsoffice. Verily, a persons identitydoes not depend solely on his name, but also on his physical features. Thus, a victim of a crime can still identifythe culprit even without knowing his name.Similarly, the Court, in People v. Vasquez,24 ruled that:
It matters little that the eyewitness initially recognizedaccused-appellant only by face [the witness] acted like any ordinary personin making inquiries to find out the name that matched [appellants] face. Significantly, in open court, heunequivocally identified accused-appellant as their assailant.
Even in the case of People v.Timon,25 relied upon byaccused-appellant to discredit his identification, this Court said that evenassuming that the out-of-court identification of accused-appellant wasdefective, their subsequent identification in court cured any flaw that mayhave initially attended it.
In light of the foregoing,Rosilyns failure to identify accused-appellant out of the 16 pictures shown toher does not foreclose the credibility of her unqualified identification ofaccused-appellant in open court. Thesame holds true with the subject cartographic sketch which, incidentally,resembles accused-appellant. As notedby the trial court, accused-appellant and his brother Dominador Jalosjos have astriking similarity in facial features.Naturally, if the sketch looks like Dominador, it logically follows thatthe same drawing would definitely look like accused-appellant.
Likewise, Rosilyns failure tocorrectly approximate the age of accused-appellant and to state that he has amole on the lower right jaw, cannot affect the veracity of accused-appellantsidentification. At a young age, Rosilyncannot be expected to give the accurate age of a 56 year-old person. As to accused-appellants mole, the SolicitorGeneral is correct in contending that said mole is not so distinctive as tocapture Rosilyns attention and memory.When she was asked to give additional information aboutaccused-appellant, Rosilyn described him as having a prominent belly. This,to our mind, is indeed a more distinguishing feature that would naturally catchthe attention of an eleven year-old child like Rosilyn.
In his fifth assigned error,accused-appellant insists that the words idinikit, itinutok, and idiniin-diin,which Rosilyn used to describe what accused-appellant did to her vagin*with his genitals, do not constitute consummated rape. In addition, the defense argued that Rosilyndid not actually see accused-appellants penis in the supposed sexualcontact. In fact, they stressed thatRosilyn declared that accused-appellants sem*n spilled in her thighs and notin her sex organ.
Moreover, in his Reply Brief,accused-appellant, citing People v. Campuhan, argued that, assuming thathis penis touched or brushed Rosilyns external genitals, the same is notenough to establish the crime of rape.
True, in People v. Campuhan,26 we explained that thephrase, the mere touching of the external genitalia by the penis capable ofconsummating the sexual act is sufficient to constitute carnal knowledge,means that the act of touching should be understood here as inherently part ofthe entry of the penis into the labia of the female organ and not mere touchingalone of the mons pubis or the pudendum.We further elucidated that:
The pudendum or vulva is the collective term for the female genitalorgans that are visible in the perineal area, e.g., mons pubis, labiamajora, labia minora, the hymen, the cl*tor*s, the vagin*l orifice, etc. The mons pubis is the rounded eminence thatbecomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or theouter lips of the female organ composed of the outer convex surface and theinner surface. The skin of the outerconvex surface is covered with hair follicles and is pigmented, while the innersurface is a thin skin which does not have any hairs but has many sebaceousglands. Directly beneath the labiamajora is the labia minora.Jurisprudence dictates that the labia majora must be entered for rape tobe consummated, and not merely for the penis to stroke the surface of thefemale organ. Thus, a grazing of thesurface of the female organ or touching the mons pubis of the pudendum is notsufficient to constitute consummated rape.Absent any showing of the slightest penetration of the female organ, i.e.,touching of either labia of the pudendum by the penis, there can be noconsummated rape; at most, it can only be attempted rape, if not acts oflasciviousness.27cräläwvirtualibräry
In the present case, there issufficient proof to establish that the acts of accused-appellant went beyondstrafing of the citadel of passion or shelling of the castle of org*smicpotency, as depicted in the Campuhan case, and progressed intobombardment of the drawbridge [which] is invasion enough,28 there being, in a manner ofspeaking, a conquest of the fortress of ignition. When the accused-appellant brutely mounted between Rosilynswide-spread legs, unfetteredly touching, poking and pressing his penis againsther vagin*, which in her position would then be naturally wide open and readyfor copulation, it would require no fertile imagination to belie the hypocrisyclaimed by accused-appellant that his penis or that of someone who looked likehim, would under the circ*mstances merely touch or brush the external genitalof Rosilyn. The inevitable contactbetween accused-appellants penis, and at the very least, the labia of thepudendum of Rosilyn, was confirmed when she felt pain inside her vagin* whenthe idiniin part of accused appellants sex ritual was performed.
The incident on June 18, 1996 wasdescribed by Rosilyn as follows:
PROS. ZUNO:
Q. And, after kissing yourlips; after kissing you in your lips, what else did he do?
A. After that, he waslifting my shirt.
Q. Now, while he waslifting your shirt, what was your position; will you tell the court?
A. I was lying, sir.
Q. Lying on what?
A. On the bed, sir.
Q. And, after lifting yourshirt, what else did he do?
A. He spread my legs sir.
Q. And, after spreadingyour legs apart; what did he do?
A. After that, he liftedhis shirt and held his penis.
Q. And while he was holdinghis penis; what did he do?
A. He pressed it in myvagin*.
ATTY. FERNANDEZ:
May we request that the vernacular be used?
A. Tapos po, idinikit-dikitpo niya yong ari niya sa ari ko.
PROS. ZUNO:
May I respectfully move that the word: idinikit-dikit niya angari niya sa ari ko, be incorporated?
Q. And while he was doingthat; according to you, idinikit-dikit niya ang ari niya sa ari mo;what did you feel?
A. I was afraid and then, Icried.
Q. Will you tell the Courtwhy you felt afraid and why you cried?
A. Because I was afraid hemight insert his penis into my vagin*.
Q. And, for how long didCongressman Jalosjos perform that act, which according to you, idinikit-dikitniya yong ari niya sa ari ko?
COURT:
Place the Tagalog words, into the records.
A. Sandali lang po yon.
Q. What part of yourvagin*, or ari was being touched by the ari or penis?
x x x
Q. You said that you feltI withdraw that question. How did youknow that Congressman Jalosjos was doing, idinikit-dikit niya yung ari niyasa ari ko?
A. Because I could feel it,sir.
Q. Now, you said you couldfeel it. What part of the vagin* inwhat part of your vagin* was Congressman Jalosjos, according to you, idinikit-dikitniya yong ari niya sa ari mo?
A. In front of my vagin*,sir.
Q. In front of yourvagin*? O.K.; will you tell the Courtthe position?
Will you describe the position ofCongressman Jalosjos when he was doing that. Idinikit-dikit niya sa ariko?
A. Ide-demonstrate ko poba?
FISCAL ZUNO:
Q. Can you demonstrate?
x x x
A. He was holding me likethis with his one hand; and was holding his penis while his other hand, or hisfree hand was on the bed.
x x x
PROS. ZUNO:
Now, according to you, you dont know how to say it; or what wasdone to you. Now, will you tell theCourt how can you describe what was done to you?
A. After he dinikit-dikitniya yong ari niya sa ari ko; itinutok naman niya ito.
Q. O.K. you said itinutokniya ito; what else did he do?
PROS. ZUNO:
She is now trying to describe.
COURT:
Translate.
A. He seems to be parangidinidiin po niya.
Q. Now, what did you feel,when according to you; as I would quote: parang idinidiin niya?
A. Masakit po.
Q. And, just to make itclear in Tagalog: Ano itongidinidiin niya?
COURT:
Q. Sabi moitinutok. Nakita mo bang itinutok?
A. I saw him nanakaganuon po sa ano niya.
PROS. ZUNO:
Q. O.K., clarify. You said nakaganuon siya what doyou mean by nakaganuon siya?
A. He was holding hispenis, and then, that was the one which he itinutok sa ari ko.
PROS. ZUNO:
Q. And, when you said idinidiinpo niya; to which you are referring?What is this idinidiin niya?
A. Idinidiin niya angari niya sa ari ko.
Q. And what did you feelwhen you said: he was idinidiinniya ang ari niya sa ari ko?
A. Masakit po.
COURT:
The answer is masakit po.
Proceed.
PROS. ZUNO:
Q. Where did you feel thepain?
A. Inside my ari po.(Sa loob po ng ari ko.)
x x x
PROS. ZUNO:
Q. And then, after that,what else did he do
A. After that, he touchedmy breast, sir.
Q. And, after touching yourbreast, what did he do?
A. And after that I felt thathe was (witness demonstrating to the court, with her index finger, rubbingagainst her open left palm)
Q. And after doing that,what else did he do?
A. After that, heinstructed me to go to sleep.
x x x
A. I put down my clothesand then, I cried myself to sleep, sir.
Q. Why did you cry? Will you tell the court, why did you criedafter putting down your clothes?
A. Because I felt pity formyself.
(Naaawa poako sa sarili ko.)
x x x .
(Emphasis supplied.)29cräläwvirtualibräry
Even the July 20, 1996 encounterbetween Rosilyn and accused-appellant would not tax the sketchy visualizationof the nave and uninitiated to conclude that there was indeed penile invasionby accused-appellant of Rosilyns labia.On that occasion, accused-appellant was similarly ensconced between theparted legs of Rosilyn, except that, this time, Rosilyn was conveniently restedon, and elevated with a pillow on her back while accused-appellant wastouching, poking and pressing his penis against her vagin*. Topped with the thrusting motions employedby accused-appellant, the resulting pain felt by Rosilyn in her sex organ wasno doubt a consequence of consummated rape.
The pertinent portions ofRosilyns account of the July 20, 1996 incident is as follows:
PROS. ZUNO:
x x x
Q. The moment when Cong.Jalosjos inserted his finger into your vagin*, what was your position?
INTERPRETER:
The witness is asking he (sic)she has to demonstrate?
FISCAL ZUNO:
Q. Ipaliwanag mo lang?
A. My back was rested on apillow and my legs were spread apart.
Q. You said that whenCongressman Jalosjos inserted his finger into your vagin*, your back was restedon a pillow and your legs were spread wide apart, what else did he do?
A. He lifted his shirt, andheld his penis; and again idinikit-dikit niya ang ari niya sa ari ko.
Q. And what did you feelwhen he was doing that which according to you and I would quote in Tagalog: idinikit-dikitniya yong ari niya sa ari ko?
A. I was afraid sir.
Q. And, after doing that: idinikit-dikitniya yong ari niya sa ari ko, what else did he do?
A. After that, itinutokniya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko.
Q. You said: CongressmanJalosjos itinutok niya yong ari niya sa ari ko; at idiniin-diin niya yong ari niyasa ari ko; Now, while he was doingthat act, what was the position of Congressman Jalosjos?
A. His two (2) hands wereon my side and since my legs were spread apart; he was in-between them, anddoing an upward and downward movement.
(Witness demonstrated a pushing, or pumping movement)
Q. For how long didCongressman Jalosjos perform that act, pushing or pumping movement while hispenis, or ang ari niya ay nakatutok at idinidiin-diin yong ari niya sa arimo?
A. I dont know.
Q. And what did you feelwhen Congressman Jalosjos was making that movement, pushing, or pumping?
A. I felt pain and then Icried.
Q. Where did you feel thepain?
A. Inside my vagin*, sir.
x x x .30cräläwvirtualibräry
The childs narration of the rapesequence is revealing. The act of idinikit-dikitniya was followed by itinutok niya xxx at idiniin-diin niya. The idiniin-diin niya wassucceeded by Masakit po. Pain inside her ari is indicative ofconsummated penetration.
The environmental circ*mstancesdisplayed by the graphic narration of what took place at the appellants roomfrom June 14 to June 16 and June 21 to June 22, 1996 are consistent with thecomplainants testimony which shows that rape was legally consummated.
In the case of People v.Campuhan, the victim put up a resistance --- by putting her legs closetogether --- which, although futile, somehow made it inconvenient, if notdifficult, for the accused-appellant to attempt penetration. On the other hand, the ease with whichaccused-appellant herein perpetrated the sexual abuse, not to mention theabsence of time constraint, totally distinguishes the instant case from Campuhan. Here, the victim was passive and evensubmissive to the lecherous acts of accused-appellant. Thus, even assuming that his penis then was flaccid,his act of holding, guiding and assisting his penis with his one hand, whiletouching, poking and pressing the same against Rosilyn's vagin*, would surelyresult in even the slightest contact between the labia of the pudendum andaccused-appellant's sex organ.
Considering that Rosilyn is aself-confessed sex worker, and the circ*mstances of the alleged sexual assaultat bar, the defense argued that it is highly improbable and contrary to humanexperience that accused-appellant exercised a Spartan-like discipline andrestrained himself from fully consummating the sexual act when there was infact no reason for him not to do so. Inthe same light, the defense likewise branded as unnatural the testimony of Rosilynthat accused-appellant contented himself with rubbing his penis clipped betweenher thighs until he reached org*sm and desisted from fully penetrating her,when Rosilyn was then entirely at his disposal.
The defense seems to forget thatthere is no standard form of behavior when it comes to gratifying ones basicsexual instinct. The human sexualperversity is far too intricate for the defense to prescribe certain forms ofconduct. Even the word perverse isnot entirely precise, as what may be perverse to one may not be toanother. Using a child of tender yearswho could even pass as ones granddaughter, to unleash what others would calldownright bestial lust, may be utterly nauseating and repulsive to some, butmay peculiarly be a festive celebration of salacious fantasies to others. For all we know, accused-appellant may havefound a distinct and complete sexual gratification in such kind of libidinousstunts and maneuvers.
Nevertheless, accused-appellantmay not have fully and for a longer period penetrated Rosilyn for fear ofperpetrating his name through a child from the womb of a minor; or because ofhis previous agreement with his suking bugaw, Simplicio Delantar, thatthere would be no penetration, otherwise the latter would demand a higherprice. This may be the reason why SimplicioDelantar gave his mocking fatherly advice to Rosilyn that it is bad ifaccused-appellant inserts his penis into her sex organ, while at the same timeordering her to call him if accused-appellant would penetrate her. Such instance of penile invasion wouldprompt Simplicio to demand a higher price, which is, after all, as theSolicitor General calls it, the peculiarity of prostitution.
The defense contends that thetestimony of Rosilyn that accused-appellant ejacul*ted on her thighs and not inher vagin*, only proves that there was no rape. It should be noted that this portion of Rosilyns testimonyrefers to the June 15 and 21, 1996 charges of acts of lasciviousness, and notthe rape charges. In any event,granting that it occurred during the twin instances of rape on June 18 and July20, 1996, the ejacul*tion on the victims thighs would not preclude the fact ofrape.
There is no truth to thecontention of the defense that Rosilyn did not see the penis ofaccused-appellant. As can be gleanedfrom the above-quoted portions of the transcripts, Rosilyn unequivocallytestified that accused-appellant held his penis then poked her vagin* withit. And even if she did not actuallysee accused-appellants penis go inside her, surely she could have felt whetherit was his penis or just his finger.
We now come to the issue ofwhether or not Rosilyn was below twelve (12) years of age at the time the rapecomplained of occurred. To bolster thedeclaration of Rosilyn that she was then eleven years old, the prosecutionpresented the following documents:
(1) Rosilyns birthcertificate showing her birthday as May 11, 1985;31cräläwvirtualibräry
(2) Rosilyns baptismalcertificate showing her birthday as May 11, 1985;32cräläwvirtualibräry
(3) Master List of LiveBirths stating that Ma. Rosilyn Delantar was born on May 11, 1985 to LibradaTelen as the mother;33cräläwvirtualibräry
(4) Marked pages of the CordDressing Room Book;34cräläwvirtualibräry
(5) Summary of the CordDressing Book, showing her birthday as May 11, 1985 and her parents (LibradaTelen and Simplicio Delantar) patient file number (39-10-71);35cräläwvirtualibräry
(6) Record of admissionshowing her parents patient number (39-10-71) and confinement at the JoseFabella Memorial Hospital from May 5-14, 1985.36cräläwvirtualibräry
It is settled that in cases ofstatutory rape, the age of the victim may be proved by the presentation of herbirth certificate. In the case at bar,accused-appellant contends that the birth certificate of Rosilyn should nothave been considered by the trial court because said birth certificate hasalready been ordered cancelled and expunged from the records by the RegionalTrial Court of Manila, Branch 38, in Special Proceedings No. 97-81893, datedApril 11, 1997.37 However, it appears thatthe said decision has been annulled and set aside by the Court of Appeals onJune 10, 1999, in CA-G.R. SP No. 45289.The decision of the Court of Appeals was appealed to this Court bypetition for review, docketed as G.R. No. 140305. Pending the final outcome of that case, the decision of the Courtof Appeals is presumed valid and can be invoked as prima facie basis forholding that Rosilyn was indeed eleven years old at the time she was abused byaccused-appellant.
However, even assuming the absenceof a valid birth certificate, there is sufficient and ample proof of thecomplainants age in the records.
Rosilyns Baptismal Certificatecan likewise serve as proof of her age.In People v. Liban,38 we ruled that the birthcertificate, or in lieu thereof, any other documentary evidence that can helpestablish the age of the victim, such as the baptismal certificate, schoolrecords, and documents of similar nature, can be presented.
And even assuming ex gratiaargumenti that the birth and baptismal certificates of Rosilyn areinadmissible to prove her age, the Master List of Live Births and the Cord DressingBook of Dr. Jose Fabella Memorial Hospital where Rosilyn was born aresufficient evidence to prove that her date of birth was May 11, 1985. These documents are considered entries inofficial records, admissible as prima facie evidence of their contentsand corroborative of Rosilyns testimony as to her age.
Thus, Rule 130, Section 44, of theRules of Court states:
Entries in official records. --- Entries in official recordsmade in the performance of his duty by a public officer of the Philippines, orby a person in the performance of a duty especially enjoined by law, are primafacie evidence of the facts therein stated.
In Africa v. Caltex, et al.,(Phil), Inc., et al.,39 the Court laid down therequisites for the application of the foregoing rule, thus:
(a) That the entry was madeby a public officer, or by another person specially enjoined by law to do so;
(b) That it was made by thepublic officer in the performance of his duties or by such other person in theperformance of a duty specially enjoined by law; and
(c) That the public office orthe other person had sufficient knowledge of the facts by him stated, whichmust have been acquired by him personally or through official information.
In order for a book to classify asan official register and admissible in evidence, it is not necessary that it berequired by an express statute to be kept, nor that the nature of the officeshould render the book indispensable; it is sufficient that it be directed bythe proper authority to be kept. Thus,official registers, though not required by law, kept as convenient andappropriate modes of discharging official duties, are admissible.40cräläwvirtualibräry
Entries in public or officialbooks or records may be proved by the production of the books or recordsthemselves or by a copy certified by the legal keeper thereof.41 It is not necessary to showthat the person making the entry is unavailable by reason of death, absence,etc., in order that the entry may be admissible in evidence, for his beingexcused from appearing in court in order that public business be not deranged,is one of the reasons for this exception to the hearsay rule.42cräläwvirtualibräry
Corollary thereto, PresidentialDecree No. 651, as amended by P.D. No. 766,43 mandates hospitals toreport and register with the local civil registrar the fact of birth, amongothers, of babies born under their care.Said Decree imposes a penalty of a fine of not less that P500.00 normore than P1,000.00 or imprisonment of not less than three (3) months nor morethan six (6) months, or both, in the discretion of the court, in case offailure to make the necessary report to the local civil registrar.
Hence, under the above-cited P.D.651, as amended, in connection with Rule 30, Section 44, of the Rules of Court,it is clear that the Cord Dressing Room Book where the fact of birth, name ofthe mother and other related entries are initially recorded, as well as theMaster List of Live Births of the hospital, are considered entries in officialrecord, being indispensable to and appropriate modes of recording the births ofchildren preparatory to registration of said entries with the local civilregistrar, in compliance with a duty specifically mandated by law.
It matters not that the personpresented to testify on these hospital records was not the person who actuallymade those entries way back in 1985, but Amelita Avenante, the recordscustodian of the hospital in 1995. Toreiterate, these records may be proved by the presentation of the record itselfor by a certified copy or the legal keeper thereof. Proof of the unavailability of the person who made those entriesis not a requisite for their admissibility.What is important is that the entries testified to by Avenante weregathered from the records of the hospital which were accomplished in compliancewith a duty specifically mandated by law.
Therefore, the Cord Dressing RoomBook and the Master List of Live Births of the hospital are admissible asevidence of the facts stated therein.
The preparation of these hospitaldocuments preceded that of the birth and baptismal certificates ofRosilyn. They establish independent andmaterial facts prepared by unbiased and disinterested persons underenvironmental circ*mstances apart from those that may have attended thepreparation of the birth and baptismal certificates. Hence, these hospital records, to reiterate, are sufficient tosupport the testimony of Rosilyn as to her age.
Consequently, the testimony ofSimplicio Delantar that the entries in the birth certificate of Rosilyn arefalse and that he merely made them up, particularly her date of birth, wascorrectly disregarded by the trial court.It should be noted that the criminal charges for child abuse filed byRosilyn against him was the direct cause of his incarceration. This raises a possibility that Simpliciofalsely testified in the present case, to get even with Rosilyn.
Likewise, the trial courtcorrectly disregarded the testimonies of Gloria Binay and Angelito Intruzobecause the defense failed to prove that they were knowledgeable as to thecirc*mstances of Rosilyns birth. Theirtestimonies consist mainly of observations tending to show that Rosilynsappearance belie her claim that she was born on May 11, 1985.
In the four instances of acts oflasciviousness allegedly committed on June 29, June 30, July 2, and July 3,1996 (Criminal Cases Nos. 96-1994, 96-1995, 96-1996, and 96-1997,respectively), the trial court acquitted accused-appellant on the ground ofreasonable doubt as the defense was able to prove that accused-appellant wasnot in Manila but either in Dipolog or Dapitan City at the time the lasciviousacts were supposedly committed. Theevidence of the defense established that accused-appellant flew to Dipolog onJune 28, 1996, and stayed there until July 9, 1996.
In Criminal Cases Nos. 96-1991 and96-1998, for two counts of acts of lasciviousness allegedly committed both inthe early mornings of June 19 and July 21, 1996, Rosilyn merely testified thatshe felt somebody touching her private part but failed to identify the person whowas performing those lecherous acts as she was too sleepy to wake up. Hence, accused-appellant was likewiseacquitted in these cases on the ground of reasonable doubt.
With respect, however, to the actsof lasciviousness committed in the morning of June 15 and 22, 1996, and in theevening of June 14, 15, 18, and 21, 1996, as well as the rape perpetrated onJune 18, 1996 and July 20, 1996, accused-appellant failed to account for hiswhereabouts. A careful review of thepertinent transcript of stenographic notes reveals that accused-appellant didnot give any testimony as to where he was at the time these crimes werecommitted. Clearly, therefore, thetrial court correctly disregarded his unsubstantiated defense of denial, whichcannot prevail over his positive identification by Rosilyn as the culprit.
As regards the charge of acts oflasciviousness committed in the morning of June 16, 1996, accused-appellantclaimed that it was impossible for him to have committed the same because heflew to Dipolog on that day. Therecords disclose, however, that accused-appellants flight was at 9:40a.m. The possibility, therefore, ofaccused-appellants having performed the lascivious acts on the victim beforehe went off to the airport is not at all precluded. For his failure to prove the physical impossibility of hispresence at the Ritz Towers in the morning of June 16, 1996, when the sexualabuse of Rosilyn was committed, his defense of alibi must fail.
Article III, Section 5 of RepublicAct No. 7610, states:
Child Prostitution and other Sexual Abuse. --- Children,whether male or female, who for money or profit, or any other consideration ordue to the coercion or influence of any adult, syndicate or group, indulge insexual intercourse or lascivious conduct are deemed to be children exploited inprostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusionperpetua shall be imposed upon the following:
xxx xxx xxx
(b) Those who commit the actof sexual intercourse or lascivious conduct with a child exploited inprostitution or subjected to other sexual abuse; Provided, That when thevictim is under twelve (12) years of age, the perpetrators shall be prosecutedunder Article 335, paragraphs 3, for rape and Article 336 of Act No. 3815, asamended, the Revised Penal Code, for rape or lascivious conduct, as the casemay be: Provided, That the penalty for lascivious conduct when thevictim is under twelve (12) years of age shall be reclusion temporal in itsmedium period; x x x . (Emphasis supplied.)
In People v. Optana,44 the Court, citing the caseof People v. Larin,45 explained the elements of the offense ofviolation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, as follows:
1. The accused commits theact of sexual intercourse or lascivious conduct.
2. The said act is performedwith a child exploited in prostitution or subjected other sexual abuse.
3. The child, whether male orfemale, is below 18 years of age.
A child is deemed exploited in prostitution or subjected to othersexual abuse, when the child indulges in sexual intercourse or lasciviousconduct (a) for money, profit, or any other consideration; or (b) under thecoercion or influence of any adult, syndicate or group. Under RA 7610, children are persons beloweighteen years of age or those unable to fully take care of themselves orprotect themselves from abuse, neglect, cruelty, exploitation or discriminationbecause of their age or mental disability or condition.
Lascivious conduct is definedunder Article XIII, Section 32 of the Implementing Rules and Regulation of R.A.7610, as follows:
[T]he intentional touching, eitherdirectly or through clothing, of the genitalia, anus, groin, breast, inner thigh,or buttocks, or the introduction of any object into the genitalia, anus ormouth, of any person, whether of the same or opposite sex, with an intent toabuse, humiliate, harass, degrade, or arouse or gratify the sexual desire ofany person, bestial*ty, masturbation, lascivious exhibition of the genitals orpubic area of a person.
In the case at bar,accused-appellants acts of kissing Rosilyn on the lips, fondling her breast,inserting his finger into her vagin* and placing his penis between her thighs,all constitute lascivious conduct intended to arouse or gratify his sexualdesire. Hence, the trial courtcorrectly convicted accused-appellant of violation of Section 5 (b) of R.A.7610, or the Child Abuse Law, in Criminal Cases Nos. 96-1987, 96-1988, 96-1989,96-1990, 96-1992, and 96-1993, charging him with the above-described lasciviousacts.
The penalty for violation ofSection 5 (b) of R.A. 7610, or the Child Abuse Law, where the victim is below12 years of age, is reclusion temporal in its medium period.
The records show that on at leastnine (9) separate occasions, the accused-appellant inserted his finger into thecomplainants vagin*. These insertionstook place in 1996. A year later,Congress enacted Republic Act No. 8353, the Anti-Rape law of 1997. It does not apply to this case but itindicates state policy on rape. TheRevised Penal Code is now amended to read as follows:
Article 266-A. Rape;When and How Committed. Rape is committed
1. By a man who have carnalknowledge of a woman under any of the following circ*mstances:
a) Through force, threat orintimidation;
b) When the offended partyis deprived of reason or otherwise unconscious;
c) By means of fraudulentmachination or grave abuse of authority; and
d) When the offended partyis under twelve (12) years of age or is demented, even though none of thecirc*mstances mentioned above be present.
2. By any person who, underany of the circ*mstances mentioned in paragraph 1 hereof, shall commit an actof sexual assault by inserting his penis into another persons mouth or analorifice or any instrument or object, into the genital or anal orifice ofanother person. (Emphasis supplied.)
Indicative of the continuing statepolicy towards rape, the Anti-Rape Law of 1997 now classifies the crime as anoffense against persons. Any publicprosecutor, not necessarily the victim or her parents, can prosecute the case.
The penalties for the crime ofrape in the light of various circ*mstances, which are now set forth andcontained in Article 266-B of the Revised Penal Code, have also been increased.
Considering that there are neithermitigating nor aggravating circ*mstance, the trial court correctly imposed onaccused-appellant the maximum penalty of fifteen (15) years, six (6) months andtwenty (20) days of reclusion temporal, which is within the mediumperiod of reclusion temporal medium, pursuant to our ruling in Dullav. Court of Appeals.46 Notwithstanding that R.A.7610 is a special law, accused-appellant may enjoy a minimum term of the indeterminatesentence to be taken within the range of the penalty next lower to thatprescribed by the Code.47 However, the trial court erroneously fixed theminimum term of the indeterminate sentence at eight (8) years, eight (8) monthsand one (1) day of prision mayor in its medium period. In the aforesaid case of Dulla,48 we held that the penalty next lower indegree to reclusion temporal medium is reclusion temporal minimum,the range of which is from twelve (12) years and one (1) day to fourteen (14) yearsand eight (8) months. Hence, forviolation of Article III, Section 5 (b) of R.A. 7610, accused-appellant shallsuffer the indeterminate sentence of twelve years (12) and one (1) day of reclusiontemporal, as minimum, to fifteen (15) years, six (6) months and twenty (20)days of reclusion temporal as maximum.
At the time of commission of thecrimes complained of herein in 1996, statutory rape was penalized under Section11 of R.A. 7659, which amended Article 335 of the Revised Penal Code, to wit:
When and how rape is committed. --- Rape is committed byhaving carnal knowledge of a woman under any of the following circ*mstances:
1. By using force orintimidation;
2. When the woman isdeprived of reason or otherwise unconscious; and
3. When the woman is undertwelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua. xxx.
In statutory rape, mere sexualcongress with a woman below twelve years of age consummates the crime ofstatutory rape regardless of her consent to the act or lack of it. The law presumes that a woman of tender agedoes not possess discernment and is incapable of giving intelligent consent tothe sexual act. Thus, it was held thatcarnal knowledge of a child below twelve years old even if she is engaged inprostitution is still considered statutory rape. The application of force and intimidation or the deprivation ofreason of the victim becomes irrelevant.The absence of struggle or outcry of the victim or even her passivesubmission to the sexual act will not mitigate nor absolve the accused fromliability.49cräläwvirtualibräry
In the case at bar, theprosecution established beyond reasonable doubt that accused-appellant hadcarnal knowledge of Rosilyn. Moreover,the prosecution successfully proved that Rosilyn was only eleven years of ageat the time she was sexually abused. Assuch, the absence of proof of any struggle, or for that matter of consent orpassive submission to the sexual advances of accused-appellant, was of no moment. The fact that accused-appellant had sexualcongress with eleven year-old Rosilyn is sufficient to hold him liable forstatutory rape, and sentenced to suffer the penalty of reclusion perpetua.
As to accused-appellant's civilliability, the amount of moral damages awarded by the trial court for eachcount of acts of lasciviousness under Section 5 (b) of R.A. 7610 should beincreased from P20,000.00 to P50,000.00.50 On the other hand, the award of the amount ofP50,000.00 as moral damages for each count of statutory rape was correct.
In People v. Lor,51 citing the cases of People v. Victor,52 and People v. Gementiza,53 we held that the indemnityauthorized by our criminal law as civil indemnity ex delicto for theoffended party, in the amount authorized by the prevailing judicial policy andaside from other proven actual damages, is itself equivalent to actual orcompensatory damages in civil law. Saidcivil indemnity is mandatory upon finding of the fact of rape; it is distinctfrom and should not be denominated as moral damages which are based ondifferent jural foundations and assessed by the court in the exercise of soundjudicial discretion.54 Hence, accused-appellantshould be ordered to pay the offended party another P50,000.00 as civilindemnity for each count of rape and acts of lasciviousness.
WHEREFORE, the Decision of the Regional Trial Court of Makati,Branch 62, in Criminal Case Nos. 96-1985 and 96-1986 finding accused-appellantRomeo Jalosjos guilty beyond reasonable doubt of two counts of statutory rape,and sentencing him to suffer the penalty of reclusion perpetua for eachcount, is AFFIRMED. Likewise, theappealed Decision of the Regional Trial Court of Makati, Branch 62 in CriminalCase Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, findingaccused-appellant guilty beyond reasonable doubt of acts of lasciviousness insix counts, is AFFIRMED with MODIFICATIONS.As modified, accused-appellant is sentenced to suffer, for each count ofacts of lasciviousness, the indeterminate penalty of twelve years (12) and one(1) day of reclusion temporal, as minimum, to fifteen (15) years, six(6) months and twenty (20) days of reclusion temporal as maximum. Further, accused-appellant is ordered to paythe victim, Ma. Rosilyn Delantar, the additional amount of P50,000.00 as civilindemnity for each count of statutory rape and acts of lasciviousness. Finally, the award of moral damages for eachcount of acts of lasciviousness is increased to P50,000.00.
SO ORDERED.
Davide, Jr., CJ., Bellosillo,Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, DeLeon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.
