1. CRIMINAL LAW; RAPE; ELEMENTS; ESTABLISHED IN CASE AT BAR. — The elements of the crime of rape, as allegedly committed by accused-appellant, are: 1. That the accused-appellant had carnal knowledge of the complainant; 2. That the act was done against the complainant’s will; 3. That force and/or intimidation was used in the commission of the act. On whether the acts of accused-appellant constitute rape, the victim Rowena Nantiza’s testimony was sufficiently clear to show that the carnal knowledge was without her consent and with force and intimidation. There is no doubt that the crime committed by accused-appellant is rape.

2. ID.; ID.; WHEN DEATH PENALTY MAY BE IMPOSED; NOT APPLICABLE IN CASE AT BAR. — Under Article 335 of the Revised Penal Code, as amended by Section 11, R.A. No. 7659." . . the death penalty shall be imposed if the crime of rape is committed with any of the following 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.)" (Article 335, Revised Penal Code.) In the present case, the prosecution has not proved any circumstance which would justify or call for the imposition of the supreme penalty of death.

3. REMEDIAL LAW; CRIMINAL PROCEDURE; MEDICAL EXAMINATION, NOT A PREREQUISITE FOR THE PROSECUTION OF RAPE. — The Court has repeatedly held that a medical examination of the victim is not a prerequisite in prosecutions for rape. A person accused of rape can be convicted solely on the testimony of the victim provided the testimony is credible, natural, convincing and otherwise consistent with human nature and the course of things.

4. ID.; EVIDENCE; TESTIMONY; MINOR INCONSISTENCIES; BADGES THAT THE WITNESSES WERE UNREHEARSED AND HONEST. — The alleged inconsistencies in the testimonies of the prosecution witnesses pertain to minor matters and are even badges that the witnesses were unrehearsed and honest.

FRANCISCO, J., Dissenting Opinion:chanrob1es virtual 1aw library

REMEDIAL LAW; DUE PROCESS; REQUIREMENT FOR "COLD NEUTRALITY OF AN IMPARTIAL JUDGE" ; MUST BE RECOGNIZED BY THE COURT EVEN UPON FAILURE OF THE ACCUSED TO SIGNIFY HIS OBJECTION AGAINST JUDGE’S PARTIALITY. — To give life to the due process requirement of "cold neutrality of an impartial judge," the right of the judge to participate in the examination of witnesses must be sparingly used in order to avoid the impression of partiality in favor of one party. Thus, to reiterate "People v. Opida" (142 SCRA 295),." . . the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process." Under the doctrine that an appeal throws the whole case open to review, the failure of the accused to signify any kind of objection (whether by objecting to the judge’s question or by seeking for his inhibition) to the judge’s partiality during trial does not prevent this Court from taking cognizance of this irregularity and thereafter render a judgment of acquittal grounded thereon if circumstances warrant.

Accused Jesus Edualino was charged with rape in an information dated 5 July 1994 reading as follows:jgc:chanrobles.com.ph

"That on or about the 12th day of May, 1994, at Bgy. Mambalot, Municipality of Brooke’s Point, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused with lewd design, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one ROWENA C. NANTIZA, a pregnant woman, against her will and consent to her damage and prejudice.ech

CONTRARY TO LAW." 1

The case for the prosecution, as told by complainant Rowena Nantiza, is as follows:chanrob1es virtual 1aw library

On 12 May 1994, the complainant and her mother Leonora Caabay were in Mambalot, Brooke’s Point, Palawan to attend a dance. At about ten (10) o’clock in the evening of that day Rowena saw her cousin Antero Bacosa at the dance and she asked him to drink beer with her.

Antero got drunk and fell asleep. It was at this time that accused Jesus Edualino approached her and offered her a glass of beer. Rowena noticed that Edualino was drunk so she accepted the glass. She then felt dizzy after drinking the beer.

Edualino then dragged her towards a grassy area where no people were present. The accused then forced himself on top of her and succeeded in raping her while she was in a semi-unconscious state.

Rowena further stated that she was continuously resisting the assault upon her but Edualino was stronger and he even boxed her in the stomach. She stated that she passed out after the rape was consummated.

Prosecution witness Aileen Yayen testified that she saw the accused in the act of raping Rowena in the grassy area near the store of a certain Sgt. Edep and the house of a certain Mrs. Adier.

Aileen stated that she was looking for her cousin Rowena Nantiza in the early morning of 12 May 1994 at Brooke’s Point where a dance was being held. She saw Rowena with the accused on top of her in a dark grassy area near the site of the dance. Both the accused and Rowena were naked. She was able to identify the accused by pointing her flashlight from a distance of less than two (2) meters away.

She then called her aunt Erlinda de la Cruz, the victim’s mother, but when they returned, the accused immediately left when he noticed their presence.

Dr. Rogelio Divinagracia, a physician at the Brooke’s Point District Hospital, testified that on 13 May 1994, he examined Rowena Nantiza who alleged that she was sexually abused.

The medical certificate issued by Dr. Divinagracia reads as follows:jgc:chanrobles.com.ph

"Medical Certificate

This is to certify that Mrs. Rowena Nantiza, 22 years old,. married, of Bgy. Mambalot, Bks Point, with a 2-1/2 yrs old child, was examined of this date. She alleged to have been sexually forcefully assaulted by a known person, last May 12, 1994. She was accompanied by her mother.

The patient upon admission was found to be combative, with emotional outburst, shouting and crying. She was then put to sleep.

Findings

1. General: Fairly developed and nourished, patient was still under sedation during the exam. Approximately 5’4" in Ht., wt.: 118 lbs.

2. Head & Face: contusion left temporal area 2 x 2 cm. dia. Multiple superficial abrasions on the left forehead, right and left side of the face.

3. Abdomen: Linear abrasion, post. lumbar, 3 inches length, longitudinal

4. Breast: slightly globular, dark brown areola and nipple, presence of multiple contusion just below the areola on both breast.

5. Upper extremities: presence of multiple linear abrasions on both arm and forearm.

6. External genitalia: numerous pubic hair, labia majora and minora both gaping, presence of numerous dry leaves (grass) noted on both buttocks.

7. I.E. hymen fimbriated in shape, no laceration noted, easily admits 2 fingers vaginal wall lax, less prominent rugae, uterus enlarges to 2-3 mos. gestation.

Note: no sperm cell exam. done. no available microscope.

Conclusion. hymenal opening admits easily 2 fingers, it can admit an average size penis in erection without laceration, uterus enlarges to 2-3 months gestation.

(SGD.) Rogelio C. Divinagracia, M.D.

Medical Officer" 2

The defense had a different version of the incident.

Accused Jesus Edualino, while admitting that he was at the dance at Brooke’s Point on 11 May 1994, denied that he raped complainant Rowena Nantiza.

Edualino testified that after leaving the dance, he and a certain Calixto Flora went to the store of Sgt. Edep to drink beer. After he and Flora had finished a big bottle of beer, complainant Nantiza and a certain Antero Bacosa arrived. They noticed that Nantiza and Bacosa were already drunk. Accused Edualino testified that complainant Nantiza then began teasing him to kiss her. He (Edualino) stood up to get away from her but the latter followed him. Flora then held on to Nantiza’s arm to prevent the latter from following him. Edualino testified that he and Flora then went to his house where they stayed until the morning of 12 May 1994.chanrobles virtual lawlibrary

Edualino also testified that Bacosa and Nantiza may have been under the influence of marijuana since he heard the two (2) talking about having taken drugs.

Calixto Flora corroborated the accused-appellant’s version of the incident.

Felix Alberto, a resident of Brooke’s Point, testified that in the evening of 11 May 1994 while they were walking towards the place where the dance was being held, he and his sister Rose saw complainant Rowena Nantiza sitting by the roadside with her hands cupped covering her mouth. Upon seeing them, Nantiza allegedly called out "Rose, halika, tikman mo, masarap ito." (Rose, come and try this. It’s tasty). When they approached Nantiza, Alberto testified that he saw her holding what appeared to be dried marijuana leaves. Alberto then testified that he even scolded Nantiza saying, "Why are you doing that? You have already two children and you know that is bad." Alberto then took his sister and left.

Rodolfo Caabay, then barangay captain of Mambalot, Brooke’s Point, Palawan testified that in the early morning of 12 May 1994, an unusual incident was reported to him. Leonora Caabay complained that her daughter Rowena Caabay Nantiza was found lying on the ground about eight (8) meters from the store owned by a certain Sgt. Edep. He found Rowena was very hysterical and he observed that she had too much to drink. He turned over Rowena to the police. He later learned that accused-appellant was picked up for questioning regarding his alleged rape of Rowena Nantiza.

Epifania Caabay, Rodolfo’s wife, testified that she accompanied Rowena and her mother on board the police vehicle which took them to Brooke’s Point District Hospital. She stated that Rowena was hysterical and kept on shouting in the vernacular, "I want water!" Epifania further stated that Rowena’s mother slapped her and hit her on different parts of the body to quiet her down. Epifania agreed with the other defense witnesses that Rowena was quite drunk at the time.

On 23 December 1994, the trial court rendered a decision the dispositive part of which reads:jgc:chanrobles.com.ph

"WHEREFORE, in view of all the foregoing facts and considerations, the Court hereby finds the herein accused, JESUS EDUALINO guilty beyond reasonable doubt of the crime of RAPE charged in the above-entitled case as defined and penalized under Article 335 of the Revised Penal Code in relation to and as amended by Republic Act No. 7659 and accordingly, he is hereby sentenced to suffer the penalty of DEATH in the gas chamber or in the electric chair and ordered to indemnify the raped victim, ROWENA NANTIZA moral and exemplary damages amounting to P60,000.00, and to pay the costs.

With this conviction and imposition of the death penalty to the accused, he is hereby ordered immediately shipped to the national penitentiary, Muntinlupa, Metro Manila, under maximum security, to await the execution of this sentence there and the review of this decision by the Honorable Supreme Court, Manila, Philippines.

SO ORDERED." 3

The conviction of accused-appellant is now before this Court on automatic review.

Accused-appellant assigns the following errors to the trial court.

1. The trial court acted with grave abuse of discretion and demonstrated bias and partiality in favor of the prosecution during the entire proceedings of the case;

2. The trial court erred in giving credence to the false and incredible testimony of the complainant and other witnesses for the prosecution and in not giving due credence to the evidence for the defense;

3. The trial court erred in making findings of facts not supported by the evidence and in making conclusions based on mere surmises, conjectures and speculation; and

4. The trial court erred in convicting the appellant of the heinous crime of rape instead of upholding his innocence based on the evidence and the law. 4

Accused-appellant contends that the trial judge actively and "enthusiastically" assisted the prosecution, both in the direct and cross-examination of the witnesses. It is argued that "the undue interest and bias of (the trial judge) is revealed by his active participation in the entire proceeding, consistently taking the cudgels for the prosecution, instead of conducting the trial with the cold neutrality of an impartial judge." 5

A close and careful scrutiny of the transcripts of the proceedings before the trial court shows that the trial court judge may have exhibited a degree of zeal which could lead to impressions of partiality and bias. However, this per se does not warrant nullification of the entire proceedings in the case.

In People v. Hatton 6 , this Court citing People v. Ibasan 7 held thus:jgc:chanrobles.com.ph

". . . It is not denied that the court had at certain points conducted its own questioning during the proceedings. The records, however, show that the court’s questions did not amount to interference as to make the case for the prosecution and deprive the accused of their defense. The question of the judge addressed to the witnesses and the accused were merely to clarify certain points and confirm certain statements. The number of times that a judge intervenes is not necessarily an indication of bias. It cannot be taken against a judge if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party.chanrobles virtual lawlibrary

As held in the case of Ventura v. Yatco (105 Phil. 287) ‘Judges are not mere referees like those of a boxing bout, only to watch and decide the results of a game, they should have as much interest as counsel in the orderly and expeditious presentation of evidence calling attention of counsel to points at issue that are overlooked, directing them to ask questions that would elicit the facts on the issues involved, clarifying ambiguous remarks by witnesses, etc.’

A judge may properly intervene in the trial of a case to promote expedition and avoid unnecessary waste of time or to clear up some obscurity (People v. Catindihan, 97 SCRA 196, Par. 14 Canons of Judicial Ethics; Administrative Order No. 162 dated August 1, 1946, 42 O.G. 1803). In this respect, the record shows no irregularity in the conduct of the trial judge."cralaw virtua1aw library

Moreover, it is of note that counsel for accused-appellant did not object, during the trial, to the manner of questioning of the trial judge nor was his inhibition sought by the defense for alleged bias and technicality for the prosecution.

The Court will now proceed to determine if the guilt of accused-appellant has been proven beyond reasonable doubt.

The elements of the crime of rape, as allegedly committed by accused-appellant, are:chanrob1es virtual 1aw library

1. That the accused-appellant had carnal knowledge of the complainant;

2. That the act was done against the complainant’s will;

3. That force and/or intimidation was used in the commission of the act.

In the present case, the prosecution’s evidence consists mainly of the testimonies of the complainant Rowena Nantiza, Aileen Yayen and Dr. Rogelio Divinagracia.

On the other hand, Accused-appellant relies on alternative defenses of alibi and consent on the part of complainant. While accused-appellant’s defense before the trial court alleges that he had left the scene of the incident together with defense witness Calixto Flora, he alternatively raises before this Court the contention that the elements of the crime of rape have not been established. 8

Accused-appellant posits the following arguments:chanrob1es virtual 1aw library

1) No carnal knowledge occurred

It is argued that since Dr. Rogelio Divinagracia did not examine specimens from the complainant’s private parts for the presence of spermatozoa, then complainant’s testimony to the effect she, although in a state of semi-unconsciousness, felt accused-appellant on top of her consummating the sexual act, deserves no credence.

2) No force or intimidation was employed

It is argued that the force allegedly employed to consummate the rape was merely implied by the trial court from complainant’s testimony that she did not enjoy the sexual act. Accused-appellant contends that even assuming that the sexual act was consummated, the same could only have been successfully done with the consent of the complainant, "for if she ever attempted to resist or evade the thrust of the penis of appellant, the latter could not have successfully hit the mark and penetrate the vagina." 9

Accused-appellant likewise argues that the medical examination conducted on complainant fails to support the latter’s testimony that accused-appellant boxed her in the stomach.

3) The identity of the assailant has not been established

Accused-appellant assails the finding that the complainant and prosecution witness Aileen Yayen had adequately established that it was accused-appellant who committed the rape.

It is argued that complainant, who admitted being only semi-conscious, could not have seen who raped her and Aileen Yayen who, in a written statement before trial, stated that she only saw accused-appellant in shorts beside the complainant, at the time and place of the alleged rape, contradicted herself when she testified at the trial that she saw accused-appellant on top of the complainant in a grassy area behind the store of Sgt. Edep.

4) The offense of rape has not been established.

Accused-appellant contends that the testimony of the complainant tends to show "that there was foreplay before the alleged rape whereby the accused allegedly kissed her, caressed her breast and bit her nipple; that the accused was on top of her and inserted his penis in her vagina and did the push and pull movement; that she cannot remember how long it lasted but she knew [accused] had an orgasm after which the accused stood up and left, all this bear the earmarks of a voluntary and mutual coition, a consensual intercourse. There was no rape." 10

Finally, Accused-appellant raises the issue of the character of complainant Rowena Nantiza. It is argued that a responsible and decent married woman, who was then three (3) months pregnant, would not be out at two (2) o’clock in the morning getting drunk much less would a decent Filipina ask a man to accompany her to drink beer. It is contended that complainant merely concocted the charge of rape to save her marriage since her husband had found out that she was using drugs and drinking alcohol and even made a spectacle of herself when she tried to seduce accused-appellant on 11 May 1994 while she was under the influence of drugs and alcohol.chanroblesvirtual|awlibrary

At the outset of this discussion, it should be pointed out that the moral character of a rape victim is immaterial in the prosecution and conviction of the accused. The Court has ruled that prostitutes can be the victims of rape. 11

In the present case, even if accused-appellant’s allegations that the victim was drunk and under the influence of drugs and that she (the victim) cannot be considered a decent and responsible married woman, were true, said circumstances will not per se preclude a finding that she was raped.

Accused-appellant cannot successfully argue that no rape occurred because no medical examination was conducted to confirm the presence of spermatozoa in her private parts.

The Court has repeatedly held that a medical examination of the victim is not a prerequisite in prosecutions for rape. 12

A person accused of rape can be convicted solely on the testimony of the victim provided the testimony is credible, natural, convincing and otherwise consistent with human nature and the course of things. 13

After a careful and thorough study of the records of the case, the Court is convinced that the constitutional presumption of accused-appellant’s innocence has been overcome by proof of guilt beyond reasonable doubt.

On accused-appellant’s contention that the presence of force and intimidation was not proven, the Court has consistently ruled that force and intimidation should be viewed in the light of the victim’s perception and judgment at the time of the commission of the offense. 14

Indeed, there can be no hard and fast rule on the matter specially in a situation like the present case where the victim testified to being in a state of semi-consciousness after drinking a glass of beer given to her by Accused-Appellant.

Besides, the testimony of the victim is supported by the findings in the aforequoted medical certificate which shows that the injuries suffered by the victim are consistent with the charges of rape and contrary to the theory of the defense that the injuries were inflicted by the victim’s mother when she was trying to quiet her daughter who was hysterical.

The allegation that accused-appellant’s identity has not been established deserves scant consideration. It is to be noted that accused-appellant was known to the victim and prosecution witness Aileen Yayen long before the incident. Both witnesses positively identified the accused as the perpetrator of the rape. There is nothing to show that these two (2) witnesses would or did falsely implicate Accused-Appellant.

On whether the acts of accused-appellant constitute rape, the victim Rowena Nantiza’s testimony was sufficiently clear to show that the carnal knowledge was without her consent and with force and intimidation. There is no doubt that the crime committed by accused-appellant is rape.

Accused-appellant in a final attempt to absolve himself argues that the charge of rape was concocted by the victim to save her marriage.

The Court cannot believe that a married woman would invent a story that she was raped in an attempt to conceal addiction to drugs or alcohol, in order to save her marriage. We fail to understand how a false rape story can save a marriage under the circumstances averred by Accused-Appellant.

The other arguments adduced by accused-appellant pertaining to credibility of the two (2) prosecution witnesses are basically issues that cannot be reviewed by the Court absent attendant circumstances that do not exist in this case.

The alleged inconsistencies in the testimonies of the prosecution witnesses pertain to minor matters and are even badges that the witnesses were unrehearsed and honest.

Besides, in reviewing the entire records of this case, we find no reversible error in the judgment of conviction except as to the penalty of death imposed by the trial court.

The Solicitor General correctly points out that absent the attending circumstances provided for under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659 wherein the penalty for rape is death, the correct penalty is reclusion perpetua.

Under Article 335 of the Revised Penal Code, as amended by Section 11, R.A. No. 7659:jgc:chanrobles.com.ph

"x       x       x

The death penalty shall be imposed if the crime of rape is committed with any of the following circumstances:chanrob1es virtual 1aw library

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.)" 15

In the present case, the prosecution has not proved any circumstance which would justify or call for the imposition of the supreme penalty of death.

Finally, with regard to the award of P60,000.00 as moral and exemplary damages, it is noted that there is no basis for said award. Consequently the award of moral and exemplary damages is deleted. However, the accused-appellant is liable to indemnify the victim the amount of Fifty Thousand Pesos (P50,000.00) consistent with prevailing jurisprudence.

WHEREFORE, based on the foregoing, the judgment of the trial court finding accused-appellant Jesus Edualino guilty of the crime of rape is AFFIRMED with the following modifications:chanrob1es virtual 1aw library

1) Accused-appellant is hereby sentenced to suffer the penalty of reclusion perpetua; and

2) He is ordered to indemnify the victim the amount of Fifty Thousand Pesos (P50,000.00) in lieu of the award of moral and exemplary damages.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.



FRANCISCO, J., dissenting:chanrob1es virtual 1aw library

With due respect, I beg to disagree with the observations of my distinguished colleague Justice Padilla relating to (a) the trial judge’s degree of zeal in the examination of witnesses which, as he himself puts it, "could lead to impressions of partiality and bias," and (b) accused-appellant’s failure to object to the judge’s alleged demonstration of partiality during the trial, in view of my ponencia in "Tabuena v. Sandiganbayan" 1 (involving similar issues) where it was ruled to the effect that:i

1.) to give life to the due process requirement of "cold neutrality of an impartial judge", the right of the judge to participate in the examination of witnesses must be sparingly used in order to avoid the impression of partiality in favor of one party. Thus, to reiterate "People v. Opida" (142 SCRA 295),." . . the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process.

2.) Under the doctrine that an appeal throws the whole case open to review, the failure of the accused to signify any kind of objection (whether by objecting to the judge’s question or by seeking for his inhibition) to the judge’s partiality during trial does not prevent this Court from taking cognizance of this irregularity and thereafter render a judgment of acquittal grounded thereon if circumstances warrant.

Endnotes:

---

1. Original Records p. 1.

2. Original Records, p. 50.

3. Original Records, p. 87.

4. Rollo, p. 65.

5. Appellant’s Brief p. 10; Rollo, p. 65.

6. G.R. No. 85043, 16 June 1984, 210 SCRA 1.

7. G.R No. L-61652, 22 June 1984, 129 SCRA 695.

8. Accused-appellant’s Reply Brief, pp. 4-7; Rollo, pp. 175-178.

9. Accused-appellant’s Reply Brief, p. 5; Rollo, p. 176.

10. Rollo, pp. 177-178.

11. People v. Barera, G.R. No. 99867, 16 September 1996.

12. People v. Balsacao, G.R. No. 112027, 13 February 1995, 241 SCRA 309.

13. People v. Pasayan, G.R. No. 91619, 9 September 1996.

14. People v. Bantisil, G.R. No. 116062, 18 October 1995, 249 SCRA 367.

15. Article 335, Revised Penal Code.

FRANCISCO, J., dissenting:chanrob1es virtual 1aw library

1. G.R. Nos. 103501-03, En Banc Decision, promulgated on February 17, 1997.