EN BANC
[G.R. Nos. 135511-13. November 17, 2000.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ENRICO MARIANO, Accused-Appellant.
D E C I S I O N
PER CURIAM:
Rape is an abhorrent crime that taints the purity and dignity of its victims, especially children, often reducing them to mere shells of what used to be their happy and spirited selves. The man who rapes his own child strips himself of the love and respect due him as a father and a human being. Being thus a slave of his prurient desire, he is reduced to a level lower than beasts. He is no more than a soulless husk and deserves to forfeit his place in human society.chanrob1es virtua1 1aw 1ibrary
Before us on automatic review 1 is the joint Decision 2 dated August 3, 1998 of the Regional Trial Court of San Pablo City, Branch 32 in Criminal Cases Nos. 10343-SP, 10344-SP and 10345-SP finding Enrico Mariano guilty beyond reasonable doubt of three (3) counts of rape committed against his own daughter, Jenalyn F. Mariano, and sentencing him to suffer the supreme penalty of death for each count of rape.
The facts as borne by the record are as follows:chanrob1es virtual 1aw library
Jenalyn F. Mariano was born on August 14, 1982 3 to herein accused-appellant Enrico Mariano, a driver and laborer, and Catalina Fernandez, a domestic helper and babysitter in London, since August 1992. 4
One night a few weeks after Jenalyn’s mother left for London on August 9, 1992, then ten year-old Jenalyn was at home with her father, herein accused-appellant, and her brother, Ronald, in a rented house at Block 14, Lot 24, NHA, Barangay Sto. Angel in San Pablo City. While accused-appellant was drinking gin, he called both Jenalyn and Ronald and ordered each to drink a glass of gin. Since accused-appellant look irritated at them and both were afraid of their father who would spank them for no apparent reason, they drank gin as ordered. Accused-appellant then told them to sleep in the "sala." As instructed, they slept on a mat in the "sala." Accused-appellant joined them and slept between Jenalyn and Ronald. Jenalyn fell asleep immediately. 5
At ten o’clock later that night, Jenalyn was stirred from her deep slumber by the movements of Accused-Appellant. Jenalyn was shocked to see her father naked. He was kneeling in front of her and his penis was touching her vagina. She no longer wore her panty. Accused-appellant’s hands were mashing her pre-pubescent breast and he was forcibly introducing his penis in her vagina. Jenalyn struggled hard against accused-appellant, trying to remove accused-appellant’s hands and to move aside his legs. She desperately tried to remove his penis from her vagina but accused-appellant was stronger and persistent. Accused-appellant was able to insert a portion of his penis in Jenalyn’s vagina. Due to the intense pain, Jenalyn cried. Then, Accused-appellant removed his penis from Jenalyn’s vagina and masturbated. Jenalyn covered herself with a blanket and tried to sleep but was unable to do so at once, not only for fear that accused-appellant might rape her once more but likewise because she felt unbearable pain in her vagina. 6
At around seven o’clock the next morning, Jenalyn woke up. She saw accused-appellant was beside her fast asleep. She got up, went to the toilet and urinated. Her vagina was still painful and she cleaned and washed her vagina. Jenalyn did not tell anybody about what accused-appellant did to her because she was afraid of him since every time accused-appellant was drunk he would warn them that he might kill them next to the others he killed before. 7
The second rape occurred in September 1996 while Jenalyn was living with her aunt, Sonia M. Flor, Accused-appellant’s older sister, and her aunt’s two children at Block 14, Lot 27, NHA, Barangay Sto. Angel in San Pablo City. At that time, Accused-appellant was likewise staying there. Accused-appellant and Jenalyn occupied the extension room located at the back of Sonia’s house. 8
One night in September 1996, at around ten o’clock in the evening, Accused-appellant, who was very drunk, ordered Jenalyn to sleep in the extension room. Jenalyn obeyed her father as he was already drunk and she was afraid to cross him. Accused-appellant once again said the names of persons he killed. Jenalyn was only half-asleep as she was afraid that accused-appellant might rape her again. Accused-appellant took off his pants when he came into the room. Wearing his brief only, he laid down on the folding bed where Jenalyn lay. He smoked a cigarette and placed a knife on a table. 9
After he smoked one cigarette, Accused-appellant removed the pillows by Jenalyn’s side and entered the mosquito net which covered Jenalyn’s side of the bed. Accused-appellant took off Jenalyn’s "porontong" shorts and panty and placed himself on top of her. Jenalyn wanted to call out for help but accused-appellant poked the knife at her. Accused-appellant then tried to insert his penis into her vagina. Jenalyn struggled and kicked Accused-Appellant. She felt accused-appellant’s penis on her vagina. However, Accused-appellant was not able to fully penetrate her, as Jenalyn’s vagina was small. Accused-appellant stood up and masturbated until he ejaculated. 10
On February 2, 1997, Jenalyn was raped for the third time. Jenalyn and accused-appellant still stayed at the extension room of Sonia Flor’s house. While Jenalyn and her two cousins, Abegail and Iris, were watching the Sunday noontime show ASAP, Accused-appellant came home after a drinking spree and proceeded to the extension room. He summoned Jenalyn by whistling at her. Afraid of her father, Jenalyn went to him. Accused-appellant told Jenalyn to lie down on the folding bed and sleep. Jenalyn obeyed him since accused-appellant was drunk and she was terrified. Accused-appellant took off his trousers and placed his knife on top of the cabinet where he kept his clothes. Jenalyn tried to sleep but could not as accused-appellant was talking, telling her that he had already changed his ways and that "malapit na akong mamatay." 11
Clad only in his brief, Accused-appellant took the knife on top of the cabinet and placed himself on top of Jenalyn. He took off Jenalyn’s pants and panty and, with his brief lowered to his knees, tried to insert his penis into her vagina. As accused-appellant forced his penis into Jenalyn’s vagina, she felt as though her sex organ was being broken or torn apart. Jenalyn struggled against accused-appellant and tried to kick him off. Her efforts proved futile as accused-appellant was very strong and he had a knife poked at her. Accused-appellant was not able to fully penetrate Jenalyn’s vagina, as his sex organ was big. He then stood up and masturbated until he ejaculated. 12
No longer able to stand being defiled by her father, Jenalyn went to her aunt, Rosario Fernandez Concepcion, a sister of her mother, and confided to her aunt what accused-appellant has done to her. When Rosario asked Jenalyn why did she divulge the incidents only then, she answered that it was because she was afraid. Jenalyn’s case was brought to the police who investigated her and took her statement. 13
On the basis of the sworn statement 14 of Jenalyn F. Mariano, alleging that she was raped by accused-appellant on three (3) occasions, three (3) criminal complaints 15 of rape under Article 335 of the Revised Penal Code, were filed on March 25, 1997 against accused-appellant before the Regional Trial Court of San Pablo City. 16
The criminal complaint for Criminal Case No. 10343-SP 17 reads as follows:chanrob1es virtua1 1aw 1ibrary
That sometime in the month of August, 1992, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused above-named, being then the father of Jenalyn F. Mariano, a minor, ten (10) years of age having been born on August 14, 1982, with lewd designs and by means of force and intimidation, did then and there willfully, unlawfully, and feloniously had sexual intercourse with the said JENALYN F. MARIANO.
CONTRARY TO LAW.
Except as to the material dates of the commission of the crimes charged, that is, sometime in the month of September 1996 in Criminal Case No. 10344-SP 18 and February 2, 1997 in Criminal Case No. 10345-SP, 19 the identical criminal complaints for the two other criminal cases read as follows:chanrob1es virtual 1aw library
That (date of commission of crime charged), in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused, above-named, being then the father of JENALYN F. MARIANO, a minor, having been born on August 14, 1982, with lewd designs and by means of force and intimidation, did then and there willfully, unlawfully, and feloniously had sexual intercourse with the said JENALYN F. MARIANO.
CONTRARY TO LAW.
When arraigned on September 16, 1997, Accused-appellant, assisted by counsel de oficio, pleaded "Not guilty" to each count of rape. Thereafter, joint trial on the merits ensued.
The prosecution presented evidence, which were drawn principally from the testimony of the victim, Jenalyn Mariano, tending to establish the above factual narration. 20 Other prosecution witnesses were Felix Fernandez, the uncle of Jenalyn, testifying that Jenalyn revealed to him on February 17, 1997 that she was sexually abused by accused-appellant; 21 and Dr. Marysol C. Cerda 22 testifying on the medico-legal examination she performed on Jenalyn.
Dr. Marysol C. Cerda testified that on February 17, 1997, she was then a doctor of the San Pablo City District Hospital. She examined Jenalyn at around 9:15 in the evening. The examination revealed that Jenalyn’s hymen admitted one finger with ease and that it bore old healed lacerations at 2 o’clock, 5 o’clock, 7 o’clock and 9 o’clock. She declared that the lacerations could have caused by penetration by the opposite sex, excessive exercises, accident, or trauma. 23
For his part, Accused-appellant denied the accusations against him 24 and interposed the defense of alibi. He claimed that in August 1992 he was in hiding at the house of his compadre in Gasan, Marinduque because of threats to his life for having killed persons in San Pablo City 25 and from 1995 to August 1997 he stayed with one Alma Flores in Brgy. Cupang. 26 He strongly manifested that Jenalyn filed the rape cases against him after he learned from Sonia, his sister, that Jenalyn drank liquor in school. 27
Sonia M. Flor testified for the accused-appellant and corroborated accused-appellant’s contention that he was not in San Pablo City in 1992 as he was in hiding somewhere else due to the commission of two homicides 28 nor was he there in the year 1996 and 1997 since accused-appellant was not sleeping at her (Sonia’s) house. 29 On cross-examination, Sonia Flor said that she could not say that Jenalyn fabricated the cases since she was not with them all the time. She confirmed, however, that whenever accused-appellant visits his children, instead of showing love to them, he always mauled them and maltreated them. 30
Weighing the evidence against the accused-appellant, the trial court convicted accused-appellant of the crimes charged in its decision dated August 3, 1998, 31 the dispositive portion of which reads:chanrob1es virtual 1aw library
IN VIEW OF THE FOREGOING considerations, the accused is hereby pronounced guilty beyond reasonable doubt of three (3) counts of rape in the three (3) Criminal Informations cited above and for the consequences of his acts said accused ENRICO MARIANO is hereby sentenced to suffer the capital punishment of DEATH in three (3) counts and to pay the costs. Accused Enrico Mariano is ordered to pay Jenalyn F. Mariano the sum of P500,000.00 as moral and exemplary damages.
SO ORDERED. 32
Accused-appellant assigns a lone albeit encompassing error 33 in his brief, to wit:chanrob1es virtual 1aw library
THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED IN THE INFORMATION DESPITE INSUFFICIENCY OF THE EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.chanrob1es virtua1 1aw 1ibrary
Accused-appellant once again denies culpability for the alleged rapes of his daughter Jenalyn. He claims that the testimony of Jenalyn lacks the element of truthfulness and is not in accord with natural human experience 34 as shown by the shifting testimony of Jenalyn as to how she was allegedly raped by the accused-appellant, regarding the penetration of accused-appellant’s penis in her vagina and the presence of the knife. 35 He submits that it is hard to imagine that the incident would occur in that one mat where the complainant’s brother was also sleeping and still her brother was not awakened despite her testimony that she struggled with her father. 36
The appeal is devoid of merit.
Time and again this Court has held that when it comes to the issue of credibility, this Court ordinarily defers to the assessment and evaluation given by the trial court for only the trial court has the unique opportunity to observe that elusive and incommunicable evidence of the witness’ deportment on the witness stand while testifying, an opportunity denied to the appellate courts which usually rely on the cold pages of the silent records of the case. 37 Only when such assessment is tainted with arbitrariness or oversight of some fact or circumstance of weight and influence will the appellate court depart from the trial court’s factual conclusions. 38 None appears in the subject Criminal Cases Nos. 10343-SP, 10344-SP and 10345-SP.
This Court’s own thorough review of the declaration on the witness stand of complainant Jenalyn Mariano is very typical of an innocent child whose virtue has been violated. 39 Jenalyn’s spontaneous emotional breakdowns 40 while recounting the nightmare she endured at the hands of her father are visible pictures of her credibility. She testified:chanrob1es virtual 1aw library
ATTY. QUINTOS
Q On August 19,1992 where were you residing?
A At Block 14 Lot 24 NHA, Brgy. Sto. Angel, San Pablo City.
Q Sometime in [sic] that date do you remember if there was any [sic] unusual incident that happened to you?
A Yes, sir.
Q Will you tell the Court what was that incident?
A A few weeks after my mother had left and one night when my father was drinking alone.
COURT
Q What is that unusual incident that you are telling?
A He called for me and my brother [sic] and instructed us that each of us have [sic] to drink a glass of gin.
Q Proceed next question.
ATTY. QUINTOS
Q Did you drink the glass of wine that he gave you?
A Yes, sir. Because he was looking at us so badly.
Q How about your brother did he drink the wine?
A Yes, sir because he was afraid.
Q You said you were afraid of your father why were you afraid of him?
A Although we have done nothing wrong he used to spank us.
Q After you and your brother drank the wine which your father offered to you what happened to you?
A He told us to sleep at the sala.
Q And did you agree to the instruction of your father?
A Yes, sir.
COURT
Why?
Q Because as I have said my brother and I were very much afraid of him because if we will not follow his instruction he will hit us.chanrob1es virtua1 1aw 1ibrary
ATTY. QUINTOS
Q On what did you sleep?
A On a mat, sir.
Q Will you tell the Court if the three of you, your father, your brother and yourself slept together?
A Yes, sir.
Q How [sic] was you positioned in relation to one another?
A My father was on the middle while my brother was on the side.
Q Were you able to sleep immediately?
A Yes, sir.
Q What time more or less if you remember was that?
A Around 10:00 o’clock.
Q Will you tell the court if you were arouse from your sleep?
A Yes, sir.
Q Why were you awaken?
A I was awaken and I saw my father was kneeling in front of me and he was not wearing any brief and his organ was touching my organ.
Q Which [sic] was touching your vagina?
A His penis was touching my vagina.
Q While his penis was touching your vagina what was he doing?
A His hands was moving.
Q Where?
A On my breast and he was forcing to insert his penis [sic].
Q What did you do when he was forcing to penetrate you?
A I was removing his hands and I was moving his two legs.
Q Which of your hands you were trying to remove?
A My right hand.
Q What was your right hand doing at that time?
A I was removing his hand and I was removing his penis but he was forcing to penetrate his penis.
Q What else did you do when he was persistent in penetrating you?
A Because I can not do anything and he was so strong so I was just crying.
Q (manifesting) I would like to make it on record that even from the start witness had been crying.
Did you struggle?
A Yes, sir.
Q What else did you do?
A As I have said I was removing his hands and his penis from my vagina.
Q What else did you do aside from removing his hands and his penis from your vagina?
A I was crying.
Q Tell the Court was he able to penetrate your vagina with his penis?
A Only at my singit and he was trying to insert.
COURT
Was he able to insert his penis?chanrob1es virtua1 1aw 1ibrary
A A little.
Witness drinking water on a glass because she has been crying.
Proceed.
ATTY. QUINTOS
Q You said he was able to insert part of his penis?
A Yes, sir.
Q What did he do after inserting a little of his penis?
A I was struggling and after that he was trying to masturbate.
Q After he removed his penis and he was masturbating, what did you do?
A I covered myself with a blanket.
Q What happened after you covered yourself with blanket?
A I sleeped [sic].
COURT
Do you have [sic] panty before you sleep [sic] that night?
A Yes, your Honor.
Q Who removed your panty?
A When I was awaken I did not have my panty any more.
Q Were you able to sleep that night?
A No, your Honor because I am very much afraid because he might do it again.
Q Did you feel pain in your vagina?
A Yes, your Honor, it is very painful.
Alright proceed.
ATTY. QUINTOS
Q What time did you wake up?
A Probably around 7:00 o’clock.
Q When you woke up was your father besides [sic] you?
A Yes, sir.
Q What was he doing?
A He was sleeping.
Q How about you what did you do?
A When I was awaken I entered the comfort room.
ATTY. QUINTOS
Q What did you do inside the toilet?
A I urinated.
Q While urinating, did you feel pain?
A Yes, sir, it was very painful.
Q Which [sic] was painful?
A My vagina.
Q What did you do if any to relieve the pain?
A I washed and cleaned it.
Q Did you tell that incident to anybody immediately after the incident?
A No, sir I was afraid.
COURT
Why what did he tell you?
A Because every time he was drank with wine he used to tell us "baka kayong dalawa ang isunod ko sa mga napapatay ko" .chanrob1es virtua1 1aw 1ibrary
ATTY. QUINTOS
Q In September, 1996 do you also recall where you were residing?
A Yes, sir.
Q Will you tell the Court where?
A In the house of my auntie at Block 14 Lot 27 NHA, Brgy. Sto. Angel, San Pablo City.
Q Do you remember if there was any unusual incident that occurred to you?
A Yes, sir.
Q Tell the Court what was that?
A In the house of my auntie my father told me that he will not sexually molest me because he has changed.
Q Who told you that?
A My father, "Siya po).
Q While you were there in the house of your auntie, was there anything that happened to you?
A Yes, sir.
Q Tell the Court what was it?
A It was already night time [sic] of September, 1996, he told me to sleep at the back of the extension house, at the back of the house of my auntie.
ATTY. QUINTOS
Q You said he told you to sleep at the extension room at the back of the house of your auntie, now did you obey him?
A Yes, sir, by that time he was already drank.
Q What time of the day was that?
A It was around 10:00 o’clock in the evening.
Q How about the other people in the house where did they sleep?
A In the main house.
COURT
So you said you went to the extension room where you sleeped? [sic]
A Yes, your Honor.
Q To follow [sic] your father?
A Yes, your Honor.
Q Why?
A Because he was again too much drank [sic].
Q What if he was drank?
A Because I was very much afraid and again he repeated in telling us those persons he had killed [sic].
Q So you sleeped [sic] in the extension room?
A Yes, your Honor.
Q But that was against your will?
A Yes, your Honor.
Alright proceed.
ATTY. QUINTOS
Q What was your attire at that time?
A Porontong short and t-shirt.
Q Do [sic] you have any panty that night?
A Yes, sir.
Q While you were sleeping in the extension room was there any [sic] unusual incident that happened to you?
A Yes, sir.
Q What was that?
A While I was sleeping although I was not fully sleeping and I was a little awake I was then very much afraid because he might do it again [sic].
Q While you were in that state did you see your father?
A Yes, sir.
Q What was he doing?
A He removed his pants and he was only wearing his brief.
Q After removing his pants where did place it?
A He hanged his pants on a nail.chanrob1es virtua1 1aw 1ibrary
Q After that what did he do?
A He lie [sic] down, smoke a cigarette, and then placed the knife on the table.
Q Where did he lie down?
A He lie [sic] down on the folding bed.
Q How about you where did you sleep?
A On the folding bed, which he brought from the prison.
Q After he smoked one stick of cigarette, do you know what did he do?
A He removed the pillows placed on my side and then he entered the mosquito net.
Q When he was inside the mosquito net what did he do?
A He placed himself on top of me.
Q While he was on top what did he do?
A He was forcing his penis to insert to [sic] my vagina and then kakanyogkanyog.
Q What did he do when he was kakanyogkanyog?
A I was struggling, I was kicking him.
Q Did you feel his penis?
A Yes, sir.
Q In what part of your body did you feel his penis?
A On my vagina
Q You mean to tell the Court he was able to penetrate you?
A Yes, sir.
Q What did you do when he placed his penis inside your vagina?
A I was pushing him by kicking him and when he was not able to penetrate because my vagina was so small he again stood up and masturbated and then a white substance came out from his penis.
Q What happened to your porontong short?
A He removed and also my panty.
Q Tell the Court did you call for help?
A No, sir, because his knife was poked on [sic] me.
Q At what point was he poking the knife on you?
A When he was able to place himself on top of me.
Q On February 2, 1997 where were you?
A In the house of my aunt, and we were viewing television.
Q Was your father at home at that time?
A No, sir, he was having a drinking spree somewhere else.
Q While you were watching the show on the television, do you remember if your father came home?
A Yes, sir.
Q What did you observe about him?
A He was very drank and his eyes are bloody red [sic].
Q When he arrived did he tell you something?
A He whistled.
Q How did you come to know his whistle?
A Because everytime that he will be calling us he used to whistle [sic].
Q Where was he when he whistled?
A He was already at the extension room of the house.
Q How did he enter the extension room?
A Because upon entering the gate there was a pot between the side of the house and he entered the door of the extension room [sic].
Q What did you do upon hearing the whistle?
A Again I was very much afraid, and I went there [sic].
Q Where did you go?
A To the extension room.
Q While you were inside the extension room did your father talk to you?
A Yes, sir. He told me to sleep there (matulog ka diyan).
Q Did you obey him?
A Yes, sir.
COURT
Why did you obey him?
A Because I was very much afraid because again he was very much drank [sic].
ATTY. QUINTOS
Q Where did you lie down?
A On his folding bed.
Q What were wearing at that time?
A I was wearing a long pants.
Q And what was your upper attire?
A T-shirt.
Q Do [sic] you have a panty at that time?
A Yes, sir.
Q Do [sic] you have your bra at that time?
A Yes, sir.
Q What was your position when you lie down on the folding bed?
A I was lying [sic] down by my left side.
Q Were you facing your father while you were lying [sic] down?
A Yes, sir.
Q Were you able to sleep?
A No, sir.
Q Why?chanrob1es virtua1 1aw 1ibrary
A Because when he told me I can go to sleep, while I go to sleep he was sermoning. [sic]
Q What was he sermoning you about?
A According to him he has changed his ways and he also told me "alam mo malapit na akong mamatay" .
Q While you were there was there an unusual incident that happened between you and your father?
A Yes, sir.
Q What was that?
A When he arrived, he removed his long pants and again he was carrying a knife and he placed his knife on top of a cabinet where he used to place his clothes.
COURT
Q How long is the knife?
A Witness demonstrated a length of one foot including the handle.
Proceed.
ATTY. QUINTOS
Q Did you see him remove his trousers?
A Yes, sir.
Q What did he do with his trousers after removing it?
A He again hanged [sic] it on a nail.
Q And what was left on him after removing his trousers?
A Brief.
Q After that what did he do?
A "Nanenermon na naman, and he again hold [sic] a knife.
Q And then what did he do?
A "Pinatungan niya ako" .
(counsel manifesting) Every time and every now and then the witness was heavily crying.
Q What happened to the long pants you were wearing?
A He removed it.
Q And what happened to your pants?
A He also removed it.
Q What happened after that?
A "Pinatungan niya ako" .
Q What happened when he placed himself on top of you?
A Again he made a "kakanyog-kanyog movement again, when he was not able to insert his penis he stood up and masturbated and then I saw a white substance came out from his penis.
COURT
What did you after all those things have been done by your father?
A "I felt "diring-diring ako sa sarili ko, kasi po sa ginagawa niya sa akin, di po ba masama iyon" .
ATTY. QUINTOS
Q When he went on top of you did you see if he was still wearing his brief?
A The brief was on his lower knee.
Q You stated a while ago that he was trying to insert his penis, where was he trying to insert his organ?
A To my vagina.
Q Did you feel any pain when he was trying to insert his penis?
A Yes, sir, as if something has been broken or turning apart [sic].chanrob1es virtua1 1aw 1ibrary
Q What did you do when he was inserting his penis?
A Again I was struggling, I was kicking my feet but I cannot do anything because he was very strong.
Q How about the knife, were you able to see it while he was on top of you?
A Again he was holding it and he poked it on me.
Q How long was he on top of you?
A It was fact [sic], because it could not penetrate, because his penis was big.
PROSECUTOR SUÑEGA
Q For the third time why did you not ask for the help of your aunt and her children?
A Because I was afraid.
Q Because of the sexual acts that your father did to you to whom did you confide these things first?
A Because I could no longer withstand these things I went to Tita Nene her real name is Rosario Fernandez Concepcion.
Q Is she a sister of your mother?
A Yes, sir.
Q What did you tell it was it on the first, second or third time?
A The last time.
Q What did your Tita Nene tells you if any?
A She said that why is it that you only tell it now and I answered my Tita I am afraid [sic].
Q I am asking you the same question, why did you not make a complaint to your Tita at that time?
A Because I am afraid.
COURT
Afraid of whom?
A Enrico Mariano. 41
The alleged inconsistencies mentioned by accused-appellant easily dissipate to naught when the testimony of Jenalyn is considered and calibrated in its entirety, which it should be, and not by truncated portions or isolated passages. 42 Jenalyn’s youth and inexperience, let alone her lack of sophistication, must be taken in account in understanding her testimony.
When Jenalyn stated that accused-appellant’s penis did not penetrate her vagina, subsequent inquiries clarified her answer to mean that the full length of accused-appellant’s penis did not fully penetrate her vagina since his organ was too big. 43 Besides, full penile penetration of the vagina is not indispensable to sustain a conviction for rape. 44 Moreover, her testimony is supported by medical evidence of her non-virgin state. 45
With respect to the alleged inconsistencies regarding the use of the knife by accused-appellant, these refer to minor, immaterial and inconsequential details. Moral ascendancy and influence of accused-appellant, as the father of Jenalyn, substitutes for any actual violence or intimidation. 46 Even then, a rape victim, especially one of tender age, cannot be expected to remember every ugly detail of the outrage done upon her by her own father. 47
Neither is it contrary to human experience that the rape on August 1992 was committed even with Jenalyn’s brother, Ronald, sleeping near them for it must be noted that a young and inexperienced drinker like Ronald imbibed a glass of gin before sleeping such that it may have caused him to sleep so soundly that no quake or tremor would stir him up. Furthermore, there is no rule that rape can only be committed in seclusion. Indeed, lust is no respecter of time and place and rape can be committed even in places where people congregate, in parks, along the roadside, within school premises, inside an occupied house, and even in a room where other members of the family are also sleeping. 48
All in all, there is no reason to entertain any doubt that complainant Jenalyn Mariano was telling the truth for, indeed, no young girl would concoct a sordid tale of such a serious crime as sexual molestation at the hands of her own father, undergo gynecological examination, subject herself to the stigma and embarrassment of criminal prosecution, if her motive was other than a fervent desire to seek justice. 49
Accused-appellant offered simple denial and alibi. Despite the zealous efforts of accused-appellant’s counsel in the court below to secure witnesses who can attest to appellant’s alibi, none appeared for him. 50 Weighed against the positive averments of Jenalyn, which is supported by the medical evidence of her non-virgin state, the bare denial and unsubstantiated alibi of accused-appellant stand but on one leg and, therefore, must fall and yield to the evidence of the prosecution which clearly establish the guilt of the accused-appellant beyond reasonable doubt and warrant the conviction of accused-appellant for three (3) counts of incestuous rape.chanrob1es virtua1 1aw 1ibrary
Republic Act No. 7659 introduced seven other special qualifying circumstances, including the minority of the victim and the relationship between her and the offender, the attendance of which in the commission of the crime of rape under Article 335 of the Revised Penal Code, as amended, would warrant the imposition of the mandatory penalty of death. 51
The concurrence of the minority of Jenalyn, born on August 14, 1982 and merely 14 years old on September 1996 and February 2, 1997, at the time of the commission of the rapes in Criminal Cases No. 10344-SP and 10345-SP, and her relationship to the offender who is her father, were properly alleged and duly proved, and hence, the imposition of death penalty in those two cases is justified.
However, since RA 7659 took effect only on December 31, 1993, 52 the qualifying circumstance of minority and relationship cannot be appreciated against accused-appellant, and hence, the proper penalty imposable on accused-appellant in Criminal Case No. 10343-SP, for the first rape committed in August 1992, is reclusion perpetua.
While four (4) Justices of this Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty, they, nonetheless, submit to the ruling of the majority of this Court to the effect that the law is constitutional and that the death penalty should be imposed in Criminal Cases Nos. 10344-SP and 10345-SP.
As to the amount of damages, the trial court not only overlooked to impose civil indemnity which is mandatory upon the finding of fact of rape 53 but it awarded an excessive sum of P500,000.00 as moral and exemplary damages.
Prevailing jurisprudence 54 sets the amount of the civil indemnity in rape cases to P75,000.00, when committed under and effectively qualified by any of the circumstances under which the death penalty is imposed. Where the penalty meted is reclusion perpetua, the amount of P50,000.00 is applicable. 55 Thus, the victim, Jenalyn Mariano, should be awarded as and for civil indemnity the sum of P75,000.00 for each count of rape in Criminal Cases Nos. 10344-SP and 10345-SP and the sum of P50,000.00 in Criminal Case No. 10343-SP.
As to moral damages, current case law has set the amount of P50,000.00. Moral damages is granted in recognition of the victim’s injury as being inherently concomitant with and necessarily resulting from the odious crime of rape, 56 especially where the rape victim is the offender’s own innocent daughter who shall forever be haunted by a most unpleasant memory of a beastly father. In addition, exemplary damages in the amount of P25,000.00 57 must likewise be awarded in the hope of deterring other fathers with perverse tendencies and aberrant sexual behavior from preying upon and sexually abusing their own young daughters.
WHEREFORE, the appealed decision dated December 18, 1998 of the Regional Trial Court of Pasay City, Branch 109 in Criminal Cases Nos. 10343-SP, 10344-SP and 10345-SP finding accused-appellant Enrico Mariano guilty beyond reasonable doubt of three (3) counts of incestuous rape, is hereby AFFIRMED with the MODIFICATION that the penalty in Criminal Case No. 10343-SP is reduced to reclusion perpetua, and the accused-appellant is ordered to pay the victim, Jenalyn Mariano, in Criminal Cases Nos. 10344-SP and 10345-SP the sum of P75,000.00 for each case and in Criminal Case No. 10343-SP the sum of P50,000.00 by way of civil indemnity, in addition to the sum of P50,000.00 as moral damages, and P25,000.00 as exemplary damages, for each of the three (3) counts of incestuous rape.
In accordance with Sec. 25 of the RA 7659, amending Art. 83 of the Revised Penal Code, upon the finality of this Decision, let the records of Criminal Cases Nos. 10344-SP and 10345-SP be forthwith forwarded to His Excellency, the President of the Philippines for the possible exercise of his pardoning power. Costs de oficio.chanrob1es virtua1 1aw 1ibrary
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Mendoza, J., is on leave (abroad).
Before us on automatic review 1 is the joint Decision 2 dated August 3, 1998 of the Regional Trial Court of San Pablo City, Branch 32 in Criminal Cases Nos. 10343-SP, 10344-SP and 10345-SP finding Enrico Mariano guilty beyond reasonable doubt of three (3) counts of rape committed against his own daughter, Jenalyn F. Mariano, and sentencing him to suffer the supreme penalty of death for each count of rape.
The facts as borne by the record are as follows:chanrob1es virtual 1aw library
Jenalyn F. Mariano was born on August 14, 1982 3 to herein accused-appellant Enrico Mariano, a driver and laborer, and Catalina Fernandez, a domestic helper and babysitter in London, since August 1992. 4
One night a few weeks after Jenalyn’s mother left for London on August 9, 1992, then ten year-old Jenalyn was at home with her father, herein accused-appellant, and her brother, Ronald, in a rented house at Block 14, Lot 24, NHA, Barangay Sto. Angel in San Pablo City. While accused-appellant was drinking gin, he called both Jenalyn and Ronald and ordered each to drink a glass of gin. Since accused-appellant look irritated at them and both were afraid of their father who would spank them for no apparent reason, they drank gin as ordered. Accused-appellant then told them to sleep in the "sala." As instructed, they slept on a mat in the "sala." Accused-appellant joined them and slept between Jenalyn and Ronald. Jenalyn fell asleep immediately. 5
At ten o’clock later that night, Jenalyn was stirred from her deep slumber by the movements of Accused-Appellant. Jenalyn was shocked to see her father naked. He was kneeling in front of her and his penis was touching her vagina. She no longer wore her panty. Accused-appellant’s hands were mashing her pre-pubescent breast and he was forcibly introducing his penis in her vagina. Jenalyn struggled hard against accused-appellant, trying to remove accused-appellant’s hands and to move aside his legs. She desperately tried to remove his penis from her vagina but accused-appellant was stronger and persistent. Accused-appellant was able to insert a portion of his penis in Jenalyn’s vagina. Due to the intense pain, Jenalyn cried. Then, Accused-appellant removed his penis from Jenalyn’s vagina and masturbated. Jenalyn covered herself with a blanket and tried to sleep but was unable to do so at once, not only for fear that accused-appellant might rape her once more but likewise because she felt unbearable pain in her vagina. 6
At around seven o’clock the next morning, Jenalyn woke up. She saw accused-appellant was beside her fast asleep. She got up, went to the toilet and urinated. Her vagina was still painful and she cleaned and washed her vagina. Jenalyn did not tell anybody about what accused-appellant did to her because she was afraid of him since every time accused-appellant was drunk he would warn them that he might kill them next to the others he killed before. 7
The second rape occurred in September 1996 while Jenalyn was living with her aunt, Sonia M. Flor, Accused-appellant’s older sister, and her aunt’s two children at Block 14, Lot 27, NHA, Barangay Sto. Angel in San Pablo City. At that time, Accused-appellant was likewise staying there. Accused-appellant and Jenalyn occupied the extension room located at the back of Sonia’s house. 8
One night in September 1996, at around ten o’clock in the evening, Accused-appellant, who was very drunk, ordered Jenalyn to sleep in the extension room. Jenalyn obeyed her father as he was already drunk and she was afraid to cross him. Accused-appellant once again said the names of persons he killed. Jenalyn was only half-asleep as she was afraid that accused-appellant might rape her again. Accused-appellant took off his pants when he came into the room. Wearing his brief only, he laid down on the folding bed where Jenalyn lay. He smoked a cigarette and placed a knife on a table. 9
After he smoked one cigarette, Accused-appellant removed the pillows by Jenalyn’s side and entered the mosquito net which covered Jenalyn’s side of the bed. Accused-appellant took off Jenalyn’s "porontong" shorts and panty and placed himself on top of her. Jenalyn wanted to call out for help but accused-appellant poked the knife at her. Accused-appellant then tried to insert his penis into her vagina. Jenalyn struggled and kicked Accused-Appellant. She felt accused-appellant’s penis on her vagina. However, Accused-appellant was not able to fully penetrate her, as Jenalyn’s vagina was small. Accused-appellant stood up and masturbated until he ejaculated. 10
On February 2, 1997, Jenalyn was raped for the third time. Jenalyn and accused-appellant still stayed at the extension room of Sonia Flor’s house. While Jenalyn and her two cousins, Abegail and Iris, were watching the Sunday noontime show ASAP, Accused-appellant came home after a drinking spree and proceeded to the extension room. He summoned Jenalyn by whistling at her. Afraid of her father, Jenalyn went to him. Accused-appellant told Jenalyn to lie down on the folding bed and sleep. Jenalyn obeyed him since accused-appellant was drunk and she was terrified. Accused-appellant took off his trousers and placed his knife on top of the cabinet where he kept his clothes. Jenalyn tried to sleep but could not as accused-appellant was talking, telling her that he had already changed his ways and that "malapit na akong mamatay." 11
Clad only in his brief, Accused-appellant took the knife on top of the cabinet and placed himself on top of Jenalyn. He took off Jenalyn’s pants and panty and, with his brief lowered to his knees, tried to insert his penis into her vagina. As accused-appellant forced his penis into Jenalyn’s vagina, she felt as though her sex organ was being broken or torn apart. Jenalyn struggled against accused-appellant and tried to kick him off. Her efforts proved futile as accused-appellant was very strong and he had a knife poked at her. Accused-appellant was not able to fully penetrate Jenalyn’s vagina, as his sex organ was big. He then stood up and masturbated until he ejaculated. 12
No longer able to stand being defiled by her father, Jenalyn went to her aunt, Rosario Fernandez Concepcion, a sister of her mother, and confided to her aunt what accused-appellant has done to her. When Rosario asked Jenalyn why did she divulge the incidents only then, she answered that it was because she was afraid. Jenalyn’s case was brought to the police who investigated her and took her statement. 13
On the basis of the sworn statement 14 of Jenalyn F. Mariano, alleging that she was raped by accused-appellant on three (3) occasions, three (3) criminal complaints 15 of rape under Article 335 of the Revised Penal Code, were filed on March 25, 1997 against accused-appellant before the Regional Trial Court of San Pablo City. 16
The criminal complaint for Criminal Case No. 10343-SP 17 reads as follows:chanrob1es virtua1 1aw 1ibrary
That sometime in the month of August, 1992, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused above-named, being then the father of Jenalyn F. Mariano, a minor, ten (10) years of age having been born on August 14, 1982, with lewd designs and by means of force and intimidation, did then and there willfully, unlawfully, and feloniously had sexual intercourse with the said JENALYN F. MARIANO.
CONTRARY TO LAW.
Except as to the material dates of the commission of the crimes charged, that is, sometime in the month of September 1996 in Criminal Case No. 10344-SP 18 and February 2, 1997 in Criminal Case No. 10345-SP, 19 the identical criminal complaints for the two other criminal cases read as follows:chanrob1es virtual 1aw library
That (date of commission of crime charged), in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused, above-named, being then the father of JENALYN F. MARIANO, a minor, having been born on August 14, 1982, with lewd designs and by means of force and intimidation, did then and there willfully, unlawfully, and feloniously had sexual intercourse with the said JENALYN F. MARIANO.
CONTRARY TO LAW.
When arraigned on September 16, 1997, Accused-appellant, assisted by counsel de oficio, pleaded "Not guilty" to each count of rape. Thereafter, joint trial on the merits ensued.
The prosecution presented evidence, which were drawn principally from the testimony of the victim, Jenalyn Mariano, tending to establish the above factual narration. 20 Other prosecution witnesses were Felix Fernandez, the uncle of Jenalyn, testifying that Jenalyn revealed to him on February 17, 1997 that she was sexually abused by accused-appellant; 21 and Dr. Marysol C. Cerda 22 testifying on the medico-legal examination she performed on Jenalyn.
Dr. Marysol C. Cerda testified that on February 17, 1997, she was then a doctor of the San Pablo City District Hospital. She examined Jenalyn at around 9:15 in the evening. The examination revealed that Jenalyn’s hymen admitted one finger with ease and that it bore old healed lacerations at 2 o’clock, 5 o’clock, 7 o’clock and 9 o’clock. She declared that the lacerations could have caused by penetration by the opposite sex, excessive exercises, accident, or trauma. 23
For his part, Accused-appellant denied the accusations against him 24 and interposed the defense of alibi. He claimed that in August 1992 he was in hiding at the house of his compadre in Gasan, Marinduque because of threats to his life for having killed persons in San Pablo City 25 and from 1995 to August 1997 he stayed with one Alma Flores in Brgy. Cupang. 26 He strongly manifested that Jenalyn filed the rape cases against him after he learned from Sonia, his sister, that Jenalyn drank liquor in school. 27
Sonia M. Flor testified for the accused-appellant and corroborated accused-appellant’s contention that he was not in San Pablo City in 1992 as he was in hiding somewhere else due to the commission of two homicides 28 nor was he there in the year 1996 and 1997 since accused-appellant was not sleeping at her (Sonia’s) house. 29 On cross-examination, Sonia Flor said that she could not say that Jenalyn fabricated the cases since she was not with them all the time. She confirmed, however, that whenever accused-appellant visits his children, instead of showing love to them, he always mauled them and maltreated them. 30
Weighing the evidence against the accused-appellant, the trial court convicted accused-appellant of the crimes charged in its decision dated August 3, 1998, 31 the dispositive portion of which reads:chanrob1es virtual 1aw library
IN VIEW OF THE FOREGOING considerations, the accused is hereby pronounced guilty beyond reasonable doubt of three (3) counts of rape in the three (3) Criminal Informations cited above and for the consequences of his acts said accused ENRICO MARIANO is hereby sentenced to suffer the capital punishment of DEATH in three (3) counts and to pay the costs. Accused Enrico Mariano is ordered to pay Jenalyn F. Mariano the sum of P500,000.00 as moral and exemplary damages.
SO ORDERED. 32
Accused-appellant assigns a lone albeit encompassing error 33 in his brief, to wit:chanrob1es virtual 1aw library
THE LOWER COURT ERRED IN CONVICTING ACCUSED-APPELLANT OF THE CRIME CHARGED IN THE INFORMATION DESPITE INSUFFICIENCY OF THE EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.chanrob1es virtua1 1aw 1ibrary
Accused-appellant once again denies culpability for the alleged rapes of his daughter Jenalyn. He claims that the testimony of Jenalyn lacks the element of truthfulness and is not in accord with natural human experience 34 as shown by the shifting testimony of Jenalyn as to how she was allegedly raped by the accused-appellant, regarding the penetration of accused-appellant’s penis in her vagina and the presence of the knife. 35 He submits that it is hard to imagine that the incident would occur in that one mat where the complainant’s brother was also sleeping and still her brother was not awakened despite her testimony that she struggled with her father. 36
The appeal is devoid of merit.
Time and again this Court has held that when it comes to the issue of credibility, this Court ordinarily defers to the assessment and evaluation given by the trial court for only the trial court has the unique opportunity to observe that elusive and incommunicable evidence of the witness’ deportment on the witness stand while testifying, an opportunity denied to the appellate courts which usually rely on the cold pages of the silent records of the case. 37 Only when such assessment is tainted with arbitrariness or oversight of some fact or circumstance of weight and influence will the appellate court depart from the trial court’s factual conclusions. 38 None appears in the subject Criminal Cases Nos. 10343-SP, 10344-SP and 10345-SP.
This Court’s own thorough review of the declaration on the witness stand of complainant Jenalyn Mariano is very typical of an innocent child whose virtue has been violated. 39 Jenalyn’s spontaneous emotional breakdowns 40 while recounting the nightmare she endured at the hands of her father are visible pictures of her credibility. She testified:chanrob1es virtual 1aw library
ATTY. QUINTOS
Q On August 19,1992 where were you residing?
A At Block 14 Lot 24 NHA, Brgy. Sto. Angel, San Pablo City.
x x x
Q Sometime in [sic] that date do you remember if there was any [sic] unusual incident that happened to you?
A Yes, sir.
Q Will you tell the Court what was that incident?
A A few weeks after my mother had left and one night when my father was drinking alone.
x x x
COURT
Q What is that unusual incident that you are telling?
A He called for me and my brother [sic] and instructed us that each of us have [sic] to drink a glass of gin.
Q Proceed next question.
ATTY. QUINTOS
Q Did you drink the glass of wine that he gave you?
A Yes, sir. Because he was looking at us so badly.
Q How about your brother did he drink the wine?
A Yes, sir because he was afraid.
x x x
Q You said you were afraid of your father why were you afraid of him?
A Although we have done nothing wrong he used to spank us.
Q After you and your brother drank the wine which your father offered to you what happened to you?
A He told us to sleep at the sala.
Q And did you agree to the instruction of your father?
A Yes, sir.
COURT
Why?
Q Because as I have said my brother and I were very much afraid of him because if we will not follow his instruction he will hit us.chanrob1es virtua1 1aw 1ibrary
ATTY. QUINTOS
Q On what did you sleep?
A On a mat, sir.
Q Will you tell the Court if the three of you, your father, your brother and yourself slept together?
A Yes, sir.
Q How [sic] was you positioned in relation to one another?
A My father was on the middle while my brother was on the side.
Q Were you able to sleep immediately?
A Yes, sir.
Q What time more or less if you remember was that?
A Around 10:00 o’clock.
Q Will you tell the court if you were arouse from your sleep?
A Yes, sir.
Q Why were you awaken?
A I was awaken and I saw my father was kneeling in front of me and he was not wearing any brief and his organ was touching my organ.
Q Which [sic] was touching your vagina?
A His penis was touching my vagina.
Q While his penis was touching your vagina what was he doing?
A His hands was moving.
Q Where?
A On my breast and he was forcing to insert his penis [sic].
Q What did you do when he was forcing to penetrate you?
A I was removing his hands and I was moving his two legs.
Q Which of your hands you were trying to remove?
A My right hand.
Q What was your right hand doing at that time?
A I was removing his hand and I was removing his penis but he was forcing to penetrate his penis.
Q What else did you do when he was persistent in penetrating you?
A Because I can not do anything and he was so strong so I was just crying.
Q (manifesting) I would like to make it on record that even from the start witness had been crying.
Did you struggle?
A Yes, sir.
Q What else did you do?
A As I have said I was removing his hands and his penis from my vagina.
Q What else did you do aside from removing his hands and his penis from your vagina?
A I was crying.
Q Tell the Court was he able to penetrate your vagina with his penis?
A Only at my singit and he was trying to insert.
COURT
Was he able to insert his penis?chanrob1es virtua1 1aw 1ibrary
A A little.
Witness drinking water on a glass because she has been crying.
Proceed.
ATTY. QUINTOS
Q You said he was able to insert part of his penis?
A Yes, sir.
Q What did he do after inserting a little of his penis?
A I was struggling and after that he was trying to masturbate.
Q After he removed his penis and he was masturbating, what did you do?
A I covered myself with a blanket.
Q What happened after you covered yourself with blanket?
A I sleeped [sic].
COURT
Do you have [sic] panty before you sleep [sic] that night?
A Yes, your Honor.
Q Who removed your panty?
A When I was awaken I did not have my panty any more.
Q Were you able to sleep that night?
A No, your Honor because I am very much afraid because he might do it again.
Q Did you feel pain in your vagina?
A Yes, your Honor, it is very painful.
Alright proceed.
ATTY. QUINTOS
Q What time did you wake up?
A Probably around 7:00 o’clock.
Q When you woke up was your father besides [sic] you?
A Yes, sir.
Q What was he doing?
A He was sleeping.
Q How about you what did you do?
A When I was awaken I entered the comfort room.
x x x
ATTY. QUINTOS
Q What did you do inside the toilet?
A I urinated.
Q While urinating, did you feel pain?
A Yes, sir, it was very painful.
Q Which [sic] was painful?
A My vagina.
Q What did you do if any to relieve the pain?
A I washed and cleaned it.
Q Did you tell that incident to anybody immediately after the incident?
A No, sir I was afraid.
COURT
Why what did he tell you?
A Because every time he was drank with wine he used to tell us "baka kayong dalawa ang isunod ko sa mga napapatay ko" .chanrob1es virtua1 1aw 1ibrary
x x x
ATTY. QUINTOS
Q In September, 1996 do you also recall where you were residing?
A Yes, sir.
Q Will you tell the Court where?
A In the house of my auntie at Block 14 Lot 27 NHA, Brgy. Sto. Angel, San Pablo City.
x x x
Q Do you remember if there was any unusual incident that occurred to you?
A Yes, sir.
Q Tell the Court what was that?
A In the house of my auntie my father told me that he will not sexually molest me because he has changed.
Q Who told you that?
A My father, "Siya po).
Q While you were there in the house of your auntie, was there anything that happened to you?
A Yes, sir.
Q Tell the Court what was it?
A It was already night time [sic] of September, 1996, he told me to sleep at the back of the extension house, at the back of the house of my auntie.
x x x
ATTY. QUINTOS
Q You said he told you to sleep at the extension room at the back of the house of your auntie, now did you obey him?
A Yes, sir, by that time he was already drank.
Q What time of the day was that?
A It was around 10:00 o’clock in the evening.
Q How about the other people in the house where did they sleep?
A In the main house.
COURT
So you said you went to the extension room where you sleeped? [sic]
A Yes, your Honor.
Q To follow [sic] your father?
A Yes, your Honor.
Q Why?
A Because he was again too much drank [sic].
Q What if he was drank?
A Because I was very much afraid and again he repeated in telling us those persons he had killed [sic].
Q So you sleeped [sic] in the extension room?
A Yes, your Honor.
Q But that was against your will?
A Yes, your Honor.
Alright proceed.
ATTY. QUINTOS
Q What was your attire at that time?
A Porontong short and t-shirt.
Q Do [sic] you have any panty that night?
A Yes, sir.
x x x
Q While you were sleeping in the extension room was there any [sic] unusual incident that happened to you?
A Yes, sir.
Q What was that?
A While I was sleeping although I was not fully sleeping and I was a little awake I was then very much afraid because he might do it again [sic].
Q While you were in that state did you see your father?
A Yes, sir.
Q What was he doing?
A He removed his pants and he was only wearing his brief.
Q After removing his pants where did place it?
A He hanged his pants on a nail.chanrob1es virtua1 1aw 1ibrary
Q After that what did he do?
A He lie [sic] down, smoke a cigarette, and then placed the knife on the table.
Q Where did he lie down?
A He lie [sic] down on the folding bed.
Q How about you where did you sleep?
A On the folding bed, which he brought from the prison.
Q After he smoked one stick of cigarette, do you know what did he do?
A He removed the pillows placed on my side and then he entered the mosquito net.
Q When he was inside the mosquito net what did he do?
A He placed himself on top of me.
Q While he was on top what did he do?
A He was forcing his penis to insert to [sic] my vagina and then kakanyogkanyog.
Q What did he do when he was kakanyogkanyog?
A I was struggling, I was kicking him.
Q Did you feel his penis?
A Yes, sir.
Q In what part of your body did you feel his penis?
A On my vagina
Q You mean to tell the Court he was able to penetrate you?
A Yes, sir.
Q What did you do when he placed his penis inside your vagina?
A I was pushing him by kicking him and when he was not able to penetrate because my vagina was so small he again stood up and masturbated and then a white substance came out from his penis.
Q What happened to your porontong short?
A He removed and also my panty.
Q Tell the Court did you call for help?
A No, sir, because his knife was poked on [sic] me.
Q At what point was he poking the knife on you?
A When he was able to place himself on top of me.
x x x
Q On February 2, 1997 where were you?
A In the house of my aunt, and we were viewing television.
x x x
Q Was your father at home at that time?
A No, sir, he was having a drinking spree somewhere else.
Q While you were watching the show on the television, do you remember if your father came home?
A Yes, sir.
Q What did you observe about him?
A He was very drank and his eyes are bloody red [sic].
Q When he arrived did he tell you something?
A He whistled.
Q How did you come to know his whistle?
A Because everytime that he will be calling us he used to whistle [sic].
Q Where was he when he whistled?
A He was already at the extension room of the house.
Q How did he enter the extension room?
A Because upon entering the gate there was a pot between the side of the house and he entered the door of the extension room [sic].
Q What did you do upon hearing the whistle?
A Again I was very much afraid, and I went there [sic].
Q Where did you go?
A To the extension room.
Q While you were inside the extension room did your father talk to you?
A Yes, sir. He told me to sleep there (matulog ka diyan).
Q Did you obey him?
A Yes, sir.
COURT
Why did you obey him?
A Because I was very much afraid because again he was very much drank [sic].
ATTY. QUINTOS
Q Where did you lie down?
A On his folding bed.
Q What were wearing at that time?
A I was wearing a long pants.
Q And what was your upper attire?
A T-shirt.
Q Do [sic] you have a panty at that time?
A Yes, sir.
Q Do [sic] you have your bra at that time?
A Yes, sir.
Q What was your position when you lie down on the folding bed?
A I was lying [sic] down by my left side.
Q Were you facing your father while you were lying [sic] down?
A Yes, sir.
Q Were you able to sleep?
A No, sir.
Q Why?chanrob1es virtua1 1aw 1ibrary
A Because when he told me I can go to sleep, while I go to sleep he was sermoning. [sic]
Q What was he sermoning you about?
A According to him he has changed his ways and he also told me "alam mo malapit na akong mamatay" .
Q While you were there was there an unusual incident that happened between you and your father?
A Yes, sir.
Q What was that?
A When he arrived, he removed his long pants and again he was carrying a knife and he placed his knife on top of a cabinet where he used to place his clothes.
COURT
Q How long is the knife?
A Witness demonstrated a length of one foot including the handle.
Proceed.
ATTY. QUINTOS
Q Did you see him remove his trousers?
A Yes, sir.
Q What did he do with his trousers after removing it?
A He again hanged [sic] it on a nail.
Q And what was left on him after removing his trousers?
A Brief.
Q After that what did he do?
A "Nanenermon na naman, and he again hold [sic] a knife.
Q And then what did he do?
A "Pinatungan niya ako" .
(counsel manifesting) Every time and every now and then the witness was heavily crying.
Q What happened to the long pants you were wearing?
A He removed it.
Q And what happened to your pants?
A He also removed it.
Q What happened after that?
A "Pinatungan niya ako" .
Q What happened when he placed himself on top of you?
A Again he made a "kakanyog-kanyog movement again, when he was not able to insert his penis he stood up and masturbated and then I saw a white substance came out from his penis.
COURT
What did you after all those things have been done by your father?
A "I felt "diring-diring ako sa sarili ko, kasi po sa ginagawa niya sa akin, di po ba masama iyon" .
ATTY. QUINTOS
Q When he went on top of you did you see if he was still wearing his brief?
A The brief was on his lower knee.
Q You stated a while ago that he was trying to insert his penis, where was he trying to insert his organ?
A To my vagina.
Q Did you feel any pain when he was trying to insert his penis?
A Yes, sir, as if something has been broken or turning apart [sic].chanrob1es virtua1 1aw 1ibrary
Q What did you do when he was inserting his penis?
A Again I was struggling, I was kicking my feet but I cannot do anything because he was very strong.
Q How about the knife, were you able to see it while he was on top of you?
A Again he was holding it and he poked it on me.
Q How long was he on top of you?
A It was fact [sic], because it could not penetrate, because his penis was big.
x x x
PROSECUTOR SUÑEGA
Q For the third time why did you not ask for the help of your aunt and her children?
A Because I was afraid.
Q Because of the sexual acts that your father did to you to whom did you confide these things first?
A Because I could no longer withstand these things I went to Tita Nene her real name is Rosario Fernandez Concepcion.
Q Is she a sister of your mother?
A Yes, sir.
Q What did you tell it was it on the first, second or third time?
A The last time.
Q What did your Tita Nene tells you if any?
A She said that why is it that you only tell it now and I answered my Tita I am afraid [sic].
Q I am asking you the same question, why did you not make a complaint to your Tita at that time?
A Because I am afraid.
COURT
Afraid of whom?
A Enrico Mariano. 41
The alleged inconsistencies mentioned by accused-appellant easily dissipate to naught when the testimony of Jenalyn is considered and calibrated in its entirety, which it should be, and not by truncated portions or isolated passages. 42 Jenalyn’s youth and inexperience, let alone her lack of sophistication, must be taken in account in understanding her testimony.
When Jenalyn stated that accused-appellant’s penis did not penetrate her vagina, subsequent inquiries clarified her answer to mean that the full length of accused-appellant’s penis did not fully penetrate her vagina since his organ was too big. 43 Besides, full penile penetration of the vagina is not indispensable to sustain a conviction for rape. 44 Moreover, her testimony is supported by medical evidence of her non-virgin state. 45
With respect to the alleged inconsistencies regarding the use of the knife by accused-appellant, these refer to minor, immaterial and inconsequential details. Moral ascendancy and influence of accused-appellant, as the father of Jenalyn, substitutes for any actual violence or intimidation. 46 Even then, a rape victim, especially one of tender age, cannot be expected to remember every ugly detail of the outrage done upon her by her own father. 47
Neither is it contrary to human experience that the rape on August 1992 was committed even with Jenalyn’s brother, Ronald, sleeping near them for it must be noted that a young and inexperienced drinker like Ronald imbibed a glass of gin before sleeping such that it may have caused him to sleep so soundly that no quake or tremor would stir him up. Furthermore, there is no rule that rape can only be committed in seclusion. Indeed, lust is no respecter of time and place and rape can be committed even in places where people congregate, in parks, along the roadside, within school premises, inside an occupied house, and even in a room where other members of the family are also sleeping. 48
All in all, there is no reason to entertain any doubt that complainant Jenalyn Mariano was telling the truth for, indeed, no young girl would concoct a sordid tale of such a serious crime as sexual molestation at the hands of her own father, undergo gynecological examination, subject herself to the stigma and embarrassment of criminal prosecution, if her motive was other than a fervent desire to seek justice. 49
Accused-appellant offered simple denial and alibi. Despite the zealous efforts of accused-appellant’s counsel in the court below to secure witnesses who can attest to appellant’s alibi, none appeared for him. 50 Weighed against the positive averments of Jenalyn, which is supported by the medical evidence of her non-virgin state, the bare denial and unsubstantiated alibi of accused-appellant stand but on one leg and, therefore, must fall and yield to the evidence of the prosecution which clearly establish the guilt of the accused-appellant beyond reasonable doubt and warrant the conviction of accused-appellant for three (3) counts of incestuous rape.chanrob1es virtua1 1aw 1ibrary
Republic Act No. 7659 introduced seven other special qualifying circumstances, including the minority of the victim and the relationship between her and the offender, the attendance of which in the commission of the crime of rape under Article 335 of the Revised Penal Code, as amended, would warrant the imposition of the mandatory penalty of death. 51
The concurrence of the minority of Jenalyn, born on August 14, 1982 and merely 14 years old on September 1996 and February 2, 1997, at the time of the commission of the rapes in Criminal Cases No. 10344-SP and 10345-SP, and her relationship to the offender who is her father, were properly alleged and duly proved, and hence, the imposition of death penalty in those two cases is justified.
However, since RA 7659 took effect only on December 31, 1993, 52 the qualifying circumstance of minority and relationship cannot be appreciated against accused-appellant, and hence, the proper penalty imposable on accused-appellant in Criminal Case No. 10343-SP, for the first rape committed in August 1992, is reclusion perpetua.
While four (4) Justices of this Court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty, they, nonetheless, submit to the ruling of the majority of this Court to the effect that the law is constitutional and that the death penalty should be imposed in Criminal Cases Nos. 10344-SP and 10345-SP.
As to the amount of damages, the trial court not only overlooked to impose civil indemnity which is mandatory upon the finding of fact of rape 53 but it awarded an excessive sum of P500,000.00 as moral and exemplary damages.
Prevailing jurisprudence 54 sets the amount of the civil indemnity in rape cases to P75,000.00, when committed under and effectively qualified by any of the circumstances under which the death penalty is imposed. Where the penalty meted is reclusion perpetua, the amount of P50,000.00 is applicable. 55 Thus, the victim, Jenalyn Mariano, should be awarded as and for civil indemnity the sum of P75,000.00 for each count of rape in Criminal Cases Nos. 10344-SP and 10345-SP and the sum of P50,000.00 in Criminal Case No. 10343-SP.
As to moral damages, current case law has set the amount of P50,000.00. Moral damages is granted in recognition of the victim’s injury as being inherently concomitant with and necessarily resulting from the odious crime of rape, 56 especially where the rape victim is the offender’s own innocent daughter who shall forever be haunted by a most unpleasant memory of a beastly father. In addition, exemplary damages in the amount of P25,000.00 57 must likewise be awarded in the hope of deterring other fathers with perverse tendencies and aberrant sexual behavior from preying upon and sexually abusing their own young daughters.
WHEREFORE, the appealed decision dated December 18, 1998 of the Regional Trial Court of Pasay City, Branch 109 in Criminal Cases Nos. 10343-SP, 10344-SP and 10345-SP finding accused-appellant Enrico Mariano guilty beyond reasonable doubt of three (3) counts of incestuous rape, is hereby AFFIRMED with the MODIFICATION that the penalty in Criminal Case No. 10343-SP is reduced to reclusion perpetua, and the accused-appellant is ordered to pay the victim, Jenalyn Mariano, in Criminal Cases Nos. 10344-SP and 10345-SP the sum of P75,000.00 for each case and in Criminal Case No. 10343-SP the sum of P50,000.00 by way of civil indemnity, in addition to the sum of P50,000.00 as moral damages, and P25,000.00 as exemplary damages, for each of the three (3) counts of incestuous rape.
In accordance with Sec. 25 of the RA 7659, amending Art. 83 of the Revised Penal Code, upon the finality of this Decision, let the records of Criminal Cases Nos. 10344-SP and 10345-SP be forthwith forwarded to His Excellency, the President of the Philippines for the possible exercise of his pardoning power. Costs de oficio.chanrob1es virtua1 1aw 1ibrary
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Mendoza, J., is on leave (abroad).
Endnotes:
1. Pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No. 7659 entitled "An Act To Impose The Death Penalty On Certain Heinous Crimes, Amending For That Purpose The Revised Penal Code, As Amended, Other Special Penal Laws, And For Other Purposes."cralaw virtua1aw library
2. Penned by Judge Zorayda Herradura-Salcedo, Rollo, pp. 21-36.
3. Folder of Exhibits, p. 2.
4. TSN, Jenalyn F. Mariano, October 6, 1997, pp. 3, 4, 14-15.
5. Id., pp. 4-5, 11.
6. Id., pp. 6-8.
7. Id., pp. 8-9.
8. Id., pp. 10-11,16.
9. Id., pp. 11-13.
10. Id., pp. 13-14.
11. Id., pp. 18-22.
12. Id., pp. 22-23.
13. Id., pp. 23-25.
14. Folder of Exhibits, pp. 34.
15. Assisted by Juliana Anonuevo, grandmother of Jenalyn F. Mariano, Rollo, pp. 8-10.
16. At the time that the rapes for which Enrico Mariano were charged took place (August 1992, September 1996 and February 2, 1997), the crime of rape was still classified as a crime against chastity, the prosecution for which must be commenced by complaint by the offended party or her parents, grandparents, or guardian as mandated by Article 344 of the Revised Penal Code. It was only on October 22, 1997 that the crime of rape was eventually reclassified as a crime against persons, the prosecution of which is made de officio by virtue of Republic Act No. 8353 or the Anti-Rape Law of 1997.
17. Rollo, p. 8.
18. Id., p. 9.
19. Id., p. 10.
20. TSN, Jenalyn F. Mariano, October 6, 1997, pp. 2-36.
21. TSN, Felix Fernandez, October 1, 1997, pp. 3-13.
22. Spelled elsewhere in the records as "Marisol" .
23. TSN, Dr. Marisol C. Cerda, October 20, 1997, pp. 3-6; Folder of Exhibits, p. 7.
24. TSN, Enrico Mariano, November 24, 1997, p. 28.
25. Id., pp. 2-3.
26. Id., p. 25.
27. Id., p. 28.
28. TSN, Sonia Flor, January 13, 1998, pp. 3-4.
29. Id., pp. 6-9.
30. Id., p. 9.
31. See Note No. I, supra.
32. Rollo, p. 35.
33. Id., p. 54.
34. Id., p. 61.
35. Id., p. 65.
36. Id., p. 63.
37. People v. Babera, G.R. No. 130609, May 30, 2000, p. 10.
38. People v. Balgos, G.R. No. 126115, January 26, 2000, p. 8-9.
39. Id., p. 15.
40. TSN, Jenalyn F. Mariano, October 6, 1997, pp. 6, 7, 22.
41. TSN, Jenalyn F. Mariano, October 6, 1997, pp. 4-9, 10-14, 18-24. (Emphasis supplied).
42. People v. Pailanco, G.R. No. 130986, January 20, 2000., p. 6.
43. TSN, Jenalyn F. Mariano, October 6, 1997, pp. 7, 13, 23.
44. People v. Manuel, 298 SCRA 184, 191 [1998].
45. Folder of Exhibits, p. 7; People v. Llamo, G.R. No. 132138, January 28, 2000, p. 13.
46. People v. Lim, 312 SCRA 550, 567 [1999]; People v. Javier, 311 SCRA 122, 138-139 [1999].
47. People v. Pailanco, id., p. 10.
48. People v. Balora, G.R. No. 124976, May 31, 2000, p. 8. People v. Sancha, G.R. Nos. 131818-19, February 3, 2000, p. 19; People v. Villar, G.R. No. 127572, January 19, 2000, pp. 10-11.
49. People v. Padil, G.R. No. 127566, November 22, 1999, p. 12; People v. Sacapano, 313 SCRA 650, 661 [1999]
50. RTC Decision, p. 14; Rollo, p. 34.
51. SEC. 11. Article 335 of the same Code is hereby amended to read as follows:chanrob1es virtual 1aw libraryx x x
The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant 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 spouses 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 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. (Emphasis supplied).
52. People v. Simon, 234 SCRA 555, 569 [1994].
53. People v. Antonio, G.R. No. 122473, June 8, 2000, p. 10.
54. People v. Orio, G.R. No. 128821, April 12, 2000, p. 13; People v. Francisco, G.R. No. 121682, April 12, 2000, p. 9; People v. Monte, G.R. No. 125332, March 2, 2000, p. 9; People v. De los Reyes, G.R. No. 124895, March 1, 2000, p. 15.
55. In People v. Magat, G.R. No. 130026, May 31, 2000, p. 14, notwithstanding that the rape was not qualified under any of the circumstances enumerated in RA 7659 and accused was sentenced to reclusion perpetua, the amount of civil indemnity awarded was P75,000.00 since "the trauma, ignominy, pain and shame suffered by the complainant can not be treated or regarded any lesser."cralaw virtua1aw library
56. People v. Nava, G.R. Nos. 130509-12, June 19, 2000,p. 18; People v. Cambi, G.R. No. 127131, June 8, 2000, p. 12.
57. People v. Alvero, G.R. Nos. 134536-38, April 5, 2000, p. 15; People v. Alama, G.R. Nos. 134122-27, February 7, 2000, p. 14.
