EN BANC
[G.R. No. 140635. November 18, 2002.]
THE PEOPLE OF THE PHILIPPINES, Appellee, v. MARIO TERRIBLE Y OÑA, Appellant.
D E C I S I O N
CORONA, J.:
The Court is once again faced with the unpleasant task of reviewing a judgment of conviction imposing the supreme penalty of death for the commission of a crime so repulsive and despicable — incestuous rape.chanrob1es virtua1 1aw 1ibrary
Sometime in the afternoon of November 3, 1998, Gina Terrible was roused from her sleep by her 6-year-old daughter’s muffled words which sounded like "Mama si Papa yung titi niya pinasok sa bibig ko" .
Shocked and alarmed, Gina called her brother and asked him to talk to the victim, Katherine, to ascertain the truthfulness of what the child confided to her. To her mother’s devastation, Katherine confirmed the tragic experience she endured in the hands of her very own father.
On December 12, 1998, appellant Mario Terrible y Oña was charged before the Regional Trial Court with the crime of rape defined under paragraph 2 of Article 266-A and penalized under Article 266-B of the Revised Penal Code, as amended by Republic Act No. 8353, in an information which reads:jgc:chanrobles.com.ph
"That on or about November 2, 1998, at Aquino Compound, Barangay San Cristobal, Municipality of Calamba, Province of Laguna and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and thru force and intimidation and with intent to satisfy his lust, did then and there willfully, unlawfully and feloniously insert his penis into the mouth of his daughter one KATHERINE TERRIBLE y CORNEJO, 6 years old, against her will and consent.
"CONTRARY TO LAW." 1
Upon arraignment, appellant, assisted by counsel, pleaded not guilty. Thereafter trial ensued.
The prosecution’s version of the events is based principally on the testimony of the victim Katherine Terrible, Gina Terrible, mother of the victim and wife of the accused, and Dr. Felimon Raymond P. Guerra III of the Jose P. Rizal Memorial Hospital.
Katherine testified that, on November 2, 1998, at around 2:30 in the afternoon, while she and her father, the appellant herein, were inside a room in their house, appellant kissed her lips and made her lick his nipples. Appellant then inserted his penis into Katherine’s mouth and a whitish substance came out of his sex organ. He then inserted his finger into Katherine’s vagina. 2
Gina Terrible, mother of the victim and wife of appellant, recounting her daughter’s revelation of appellant’s dastardly deed, testified that, at about 2:30 in the afternoon of November 3, 1998, she was awakened by Katherine who whispered to her "Mama si Papa ‘yung titi niya sinubo sa bibig ko." Gina then called her brother Noel Pinella and asked the latter to confirm her daughter’s accusation against appellant. When asked by her uncle, Katherine confirmed what she had just told her mother. Gina immediately asked the assistance of her aunt and uncle in filing a complaint. 3
The prosecution witness, Dr. Guerra III, the doctor who conducted the physical examination of Katherine on November 4, 1998, confirmed the claim of the victim that she was raped. Dr. Guerra III testified on the presence of an old genital laceration at 12:00 o’clock position which might have occurred seven or more days prior to the examination, and redness of the labia minora. Said findings are contained in the medico-legal certificate which was presented as evidence. 4
Appellant denied the charge and testified that, on November 2, 1998, the time of the alleged rape, he was in his father’s house in Barrio Bañadero, Calamba, Laguna which is three kilometers away from their house at Barangay San Cristobal, Calamba, Laguna; that he stayed there until November 3, 1998 and did not visit his family. Appellant’s alibi was corroborated by his siblings Glecilda and Glen Terrible. Appellant further alleged that the crime was only imputed to him as his wife’s way of exacting revenge because of their deteriorating relationship.chanrob1es virtua1 1aw 1ibrary
The trial court did not accord credence to the testimony of the appellant, pointing out that the defense of denial and alibi cannot prevail against the affirmative testimony of Katherine who was only 6 years old at the time she was subjected to appellant’s sexual perversity. Furthermore Katherine’s testimony was both impeccable and straightforward.
On October 20, 1999, the regional trial court rendered a decision finding appellant guilty as charged:jgc:chanrobles.com.ph
"ACCORDINGLY, this Court finds accused Mario Terrible y Oña GUILTY beyond reasonable doubt of the crime of rape as defined and penalized under Article 266-B, Chapter III of the Revised Penal Code, as amended by R.A. 8353, and hereby sentences him to suffer the penalty of DEATH.
"Accused is further directed to indemnify the victim Katherine Terrible the sum of Fifty Thousand Pesos (P50,000.00) as and for moral damages.
"With costs against the accused.
"SO ORDERED." 5
Insisting on his innocence, appellant now attributes the following errors to the trial court:chanrob1es virtual 1aw library
I. THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONY OF THE VICTIM, KATHERINE TERRIBLE.
II. THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT MARIO TERRIBLE GUILTY OF RAPE DESPITE THE INSUFFICIENCY OF THE PROSECUTION EVIDENCE THAT WOULD WARRANT A CONVICTION BEYOND A REASONABLE DOUBT.
III. THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE DEFENSE OF ALIBI INTERPOSED BY THE APPELLANT, WHICH IS MORE CREDIBLE.chanrob1es virtua1 1aw 1ibrary
Appellant questions the veracity of the victim’s testimony and describes it as incredible. He cites the following circumstances as indicative of the lack of credibility. First, at the time of the alleged rape, the victim remained silent. According to appellant, Katherine should have cried aloud or shouted to catch the attention of her grandmother who was then at their house, stressing that neither was he armed nor did he threaten the victim. Second, Katherine’s explanation of her failure to report the alleged rape to her mother for fear of her parents separating was unbelievable. To appellant, if that was really the case Katherine should have kept mum about what appellant did to her but the child eventually told her mother just the same. Appellant insists that the crime was only imputed to him as a revenge initiated by his wife, the victim’s mother, whom appellant describes as an extremely jealous woman who would go to the extent of using her own child to exact revenge. 6
In the prosecution for rape, the credibility of the complainant’s testimony is the ,single most important issue. In the case at bar, appellant denies the rape and essentially raises the issue of credibility of witnesses. Well entrenched is the rule that the finding of the trial court on the credibility of witnesses is entitled to great weight on appeal unless cogent reasons necessitate its re-examination, the reason being that the trial court is in a better position to hear firsthand and observe the deportment, conduct and attitude of the witnesses. 7 In the present case, the trial court declared the victim’s testimony to be credible, stating that "despite her age, she testified in a categorical, frank and firm manner that, on the whole, the court found her story impeccable and unblemished." Thus we take a second look at Katherine’s testimony:jgc:chanrobles.com.ph
"FISCAL
"Q. Do you believe in God?
"A. Yes, sir.
"Q. Do you know how to pray?
"A. Yes, sir.
"Q. Do you believe and do you know that telling a lie is a sin?
"A. Yes, sir.
"Q. So, you know that you are here because you are required to tell the truth and nothing but the truth?
"A. Yes, sir.
"Q. Attached to the record is a Certificate of Live Birth of Katherine Terrible already marked as Exhibit ‘F’ showing that she was born on?
"A. November 3, 1992, sir.chanrob1es virtua1 1aw 1ibrary
"Q. You said that you are already 6 years old, can you write your name?
"A. Yes, sir.
"Q. I am now showing to you a signature in the Complaint marked as Exhibit ‘A’ over the typewritten name Katherine Terrible, is that your signature?
"A. Yes, sir.
"Q. The accused here is your father?
"A. Yes, sir.
"Q. Is he in Court now?
"A. Yes, sir.
"Q. Now, will you kindly point to him?
"A. There, sir.
"INTERPRETER:chanrob1es virtual 1aw library
Witness pointed to the accused.
"FISCAL:jgc:chanrobles.com.ph
"Q. Now, there is here a statement attached to the record showing that you gave a statement to the police when you were investigated at around 3:20 in the afternoon of November 4, 1998, again there is a signature over the typewritten name Katherine Terrible at the bottom of the statement, is that your signature also?
"A. Yes, sir.
"Q. Now, you were asked this question: ‘Ilang taon ka na?’ ‘Anim na po.’ Is that you answer.
"A. Yes, sir.
"Q. You were also asked this question: ‘Ano ang pangalan ng Papa mo?’ ‘Mario Terrible po.’ Is that your answer?
"A. Yes, sir.
"Q. Now, you were also asked this question: ‘Ano ang ginawa sa iyo ng Papa mo?’
"A. He inserted his private part into mine, sir.
"Q. What else did he do to you?
"A. Something white came out from his private part and then he inserted his finger into my private part and then he kissed my private part and he also have me licked his breast.
"Q. And then you were asked this question: ‘Kailan ito ginawa ng iyong Papa?’
"A. November 2.
"Q. Why do you remember that date?
"A. It was my brother’s birthday.
"Q. What is the name of your brother?
"A. Kuya Richard.
"Q. You were also asked this question: ‘Ilang beses na bang ginagawa ito ng papa mo?’
"A.’Marami na po.’
"Q. Then you were also asked this question: ‘Saan ba ito ginagawa ng Papa mo?’
"A. In our room.
"Q. In your own house?
"A. Yes, sir.
"Q. At Aquino Compound, San Cristobal?
"A. That is correct?
"Q. Now, can you tell the Court where your mother is at that time when these things were done to you by your father?
"A. She attended the birthday party of my brother.
"Q. Where did your Kuya Richard celebrate his birthday?
"A. In their house.
"Q. How old is your Kuya Richard?
"A. I do not know.
"Q. Is he married already?
"A. No, sir.
"Q. Is he working?
"A. No, sir he is studying.
"Q. And where is your Kuya Richard living at the time these things were done to you by your father?
"A. In their house at Makati.
"Q. You were also asked this question: ‘Totoo bang lahat ang sinasabi mo at hindi ka nagsisinungaling?’chanrob1es virtua1 1aw 1ibrary
"A. No, sir.
"Q. When you said ‘no sir,’ are you saying that you are telling the truth?
"A. Yes, sir.
"Q. Why did you not go with your mother into your Kuya Richard’s birthday?
"A. Because I was told that I cannot go with her because according to my mother no one will be left for my brothers and no one will cook our rice.
"Q. What did you feel when your father inserted his finger into your private part?
"A.’Para po akong nanginginig.’
"Q. How about when your father inserted his organ into your mouth?
"A. Nakakadiri po.
"Q. Did you ask your father why he was doing these things to you at that time?
"A. No, sir.
"Q. Why were you not able to ask him?
"A. Because I was afraid, sir.
"Q. Do you know who is this Gina Cornejo Terrible?
"A. Yes, sir.
"Q. Who is she?
"A. My mother, sir.
"Q. Did you tell your mother of (sic) what your father did to you sometime on November 2, 1998 at around 2:30 in the afternoon?
"A. I told my mother.
"Q. And what did your mother do?
"A. He called for my Uncle Junjun and daddy.
"Q. And do you know what your uncle and Junjun did after your mother told them?
"A. My uncle Junjun took a bolo and was holding the bolo.
"Q. What did he do with the bolo?chanrob1es virtua1 1aw 1ibrary
"A. Nothing, sir. 8
Even on cross-examination, her statements reveal nothing but candidness, thus:jgc:chanrobles.com.ph
"Q. Do you know already how to cook rice?
"A. Yes, sir.
"Q. How long?
"A. From the time my mother taught me how to cook.
"Q. How about your mother, is she working?
"A. No, sir, she is staying in the house.
"Q. But she was allowing you to cook rice?
"A. Yes, sir.
"Q. On November 2, 1998 when the alleged rape happened, where is Kevin at that time?
"A. He was in the living room.
"Q. How about Sugar?
"A. Also in the living room, sir.
"Q. And Kem is also in the living room?
"A. Yes, sir.
"Q. You said that this is not the first time your father did this to you, before this transpired, have you not told this to anybody specially to your mother?
"A. No, sir.
"Q. You did not tell that even to your mother?
"A. I told her, sir.
"x x x
"Q. Before, you said that your father inserted his organ to your mouth. Before that, what did he do to you?
"A. He first held his private part.
x x x" 9
Katherine’s testimony shows that she unhesitatingly pointed to her father as the person who sexually violated her and she graphically described the nauseating manner in which the crime was perpetrated against her. Her testimony was simple and straightforward, consistent and unwavering. When the victim’s testimony of her violation is corroborated by the physician’s findings of penetration, then there is sufficient foundation to conclude the existence of carnal knowledge. 10
Appellant attempts to make an issue out of the victim’s failure to shout for help inasmuch as her grandmother was at home at the time of the rape. As aptly pointed out by the Solicitor General, however, the victim of appellant’s bestiality is her own daughter who was barely 6 years old when the crime was committed. Confused and horrified as she was while being subjected to her father’s deviant sexual behavior, her tender age prevented her from resisting the sexual intrusion of her father. She just trembled in terror. 11 The workings of the human mind under emotional stress are unpredictable and there is no standard form of behavior when one is confronted by a shocking incident. More so, if one is a victim of a misfortune which in the victim’s young mind, is beyond comprehension. 12
Appellant also makes much capital of Katherine’s failure to immediately divulge the rape committed against her to her mother. She has satisfactorily explained her hesitation, however:jgc:chanrobles.com.ph
"Q. You were also asked this question: ‘Ilang beses na bang ginagawa ito ng Papa mo?’
"A.’Marami na po.’chanrob1es virtua1 1aw 1ibrary
"Q. Then you were also asked this question: ‘Saan ba ito ginagawa ng Papa mo?’
"A. In our room.
"Q. In your own house?
"A. Yes, sir.
"Q. At Aquino Compound, San Cristobal?
"A. That is correct.
"x x x
"Q. You were also asked this question? ‘Bakit hindi mo isinusumbong sa Mama mo?’
"A. Because I was afraid that they might separate from each other and because I am afraid that my mother might leave the house." 13
Corollarily, her sworn statement dated November 4, 1998 pertinently reads:jgc:chanrobles.com.ph
"6. T: Ilang beses na bang ginagawa ito sa iyo ng PAPA mo?
S: Maraming beses na po.
"7. T: Saan ba ito ginagawa ng PAPA mo?
S: Sa loob ng kuwarto namin.
"8. T: Bakit hindi mo isinumbong sa MAMA mo?
S: Huwag daw po akong magsusumbong at baka daw po sila maghiwalay." 14
The foregoing testimony reveals that the reason why she failed to disclose the repeated sexual molestation against her was because appellant had threatened that her parents would separate and her mother would leave their home. To a child, nothing can be more frightening than the thought of losing a mother, specially when her own father is putting her through hell. The Court has ruled that delay, in making a criminal accusation does not impair the credibility of a witness if such delay is satisfactorily explained. 15 Fortunately for Katherine, she was able to muster enough courage to tell her mother the sexual assaults she had been enduring at the hands of appellant. Apparently the victim could no longer stand her father’s revolting perversity which she described as nakakadiri.chanrob1es virtua1 1aw 1ibrary
Appellant also claims that his wife was merely impelled by revenge in filing of the rape case because of the latter’s extreme jealousy. Not a few accused in rape cases, in fact, have attributed similar charges against them to family feuds, resentment or revenge. These supposed motives have never swayed the Court against lending credence to the testimony of complainants who remain firm and steadfast in their account of how they are ravished by sex offenders. Courts are seldom if at all convinced that a mother would stoop so low as to subject her daughter to physical, mental and emotional, hardship concomitant to a rape prosecution just to assuage her own hurt feelings. 16 No mother in her right mind would subject her child to the humiliation, disgrace and trauma attendant to a prosecution for rape, if she were not motivated solely by the desire to incarcerate the person responsible for her child’s defilement. 17
Appellant’s defense of alibi was properly rejected by the trial court. He insisted that, at the time the rape happened, he was in his father’s house in Barrio Bañadero, Calamba, Laguna. However, considering that the place where he supposedly was is merely 3 kilometers away from their house, a distance which could be easily reached by readily available means of transportation, this defense cannot prevail over Katherine’s positive identification of appellant. 18
Courts have always looked on the defense of alibi with suspicion and have invariably received it with caution not only because it is inherently weak and unreliable but also because it is easily fabricated. For alibi to serve as basis for acquittal, it must be established with clear and convincing evidence. The requisites of time and place must be strictly met. 19 Where the accused fails to convincingly demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission, as in this case, the defense of alibi must be rejected. 20
The guilt of appellant having been established beyond reasonable doubt, we discuss now the propriety of the imposition of the death penalty.
Article 335 of the Revised Penal Code, as amended by RA 7659 and further amended by RA 8353, was renumbered to Articles 266-A and 266-B of the Revised Penal Code, the pertinent portions of which provide:jgc:chanrobles.com.ph
"Art. 266-A. Rape. When and how committed. — Rape is committed —
"1.) By a man who shall have carnal knowledge of a woman under any of the following circumstances:chanrob1es virtual 1aw library
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve years of age or is demented, even though none of the circumstances mentioned above be present.chanrob1es virtua1 1aw 1ibrary
"2.) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.
"Art. 266-B. Penalties. — Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.
"x x x
"The death penalty shall also be imposed. if the crime of rape is committed with any of the following aggravating/qualifying circumstances:jgc:chanrobles.com.ph
"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;
"x x x
"Rape under paragraph 2 of the next preceding Article shall be punished by prision mayor.
"x x x
"Reclusion temporal shall also be imposed if the rape is committed with any of the ten aggravating/qualifying circumstances mentioned in this article."cralaw virtua1aw library
In the case at hand, while it was alleged in the information that appellant is the father of the victim who is under 18 years of age, the supreme penalty of death cannot be properly imposed. Had appellant been prosecuted under the paragraph 1 of Article 266-A, the stated circumstances would call for the imposition of the death penalty. However, appellant was charged with rape under paragraph 2 of Article 266-A. Under Article 266-B, when rape defined under paragraph 2 of Article 266-A is committed with any of the ten aggravating/qualifying circumstances mentioned in the same Article 266-B, only the penalty of reclusion temporal shall be imposed.chanrob1es virtua1 law library
It would be a denial of appellant’s constitutional right to be informed of the charges against him and, consequently, a denial of due process if he is charged with rape under paragraph 2 of Article 266-A but convicted of the qualified form under paragraph 1 thereof which is punishable with death although the same was not alleged in the indictment on which he was arraigned. 21
It is most unfortunate and definitely a sad reflection on the thoroughness of the prosecutor who prepared and filed the Information that while the prosecution was able to prove the commission of the crime committed under the paragraph 1 of Article 266-A, the Information itself did not contain the allegations necessary for appellant’s conviction under said provision.
In view of the foregoing considerations, the Court is constrained to reduce the penalty to reclusion temporal. There being no mitigating or aggravating circumstance, the penalty shall be imposed in its medium period in accordance with Article 64 of the Revised Penal Code. Applying said provision, the penalty of reclusion temporal in its medium period, or 17 years and 4 months, should be imposed on appellant. Under the Indeterminate Sentence Law, said penalty constitutes the maximum term, while the minimum shall be within the range of the penalty next lower to that prescribed by the Revised Penal Code for the offense which is 10 years of prision mayor.chanrob1es virtua1 1aw 1ibrary
Finally, appellant is ordered to pay an additional amount of P50,000 as civil indemnity on top of the P50,000 moral damages awarded by the trial court.
WHEREFORE, the decision of the Regional Trial Court, Branch 34, of Calamba, Laguna in Criminal Case No. 6234-98-C is hereby MODIFIED.
Appellant Mario Terrible y Oña is found guilty beyond reasonable doubt of rape as defined under paragraph 2 of Article 266-A of the Revised Penal Code, and is hereby sentenced to suffer the indeterminate penalty of 10 years of prision mayor as minimum to 17 years and 4 months of reclusion temporal as maximum. In line with prevailing jurisprudence, appellant is further ordered to pay the victim Katherine Terrible the amount of P50,000 as moral damages and an additional amount of P50,000 as civil indemnity.chanrob1es virtua1 1aw 1ibrary
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.
Austria-Martinez, J., on leave.
Sometime in the afternoon of November 3, 1998, Gina Terrible was roused from her sleep by her 6-year-old daughter’s muffled words which sounded like "Mama si Papa yung titi niya pinasok sa bibig ko" .
Shocked and alarmed, Gina called her brother and asked him to talk to the victim, Katherine, to ascertain the truthfulness of what the child confided to her. To her mother’s devastation, Katherine confirmed the tragic experience she endured in the hands of her very own father.
On December 12, 1998, appellant Mario Terrible y Oña was charged before the Regional Trial Court with the crime of rape defined under paragraph 2 of Article 266-A and penalized under Article 266-B of the Revised Penal Code, as amended by Republic Act No. 8353, in an information which reads:jgc:chanrobles.com.ph
"That on or about November 2, 1998, at Aquino Compound, Barangay San Cristobal, Municipality of Calamba, Province of Laguna and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and thru force and intimidation and with intent to satisfy his lust, did then and there willfully, unlawfully and feloniously insert his penis into the mouth of his daughter one KATHERINE TERRIBLE y CORNEJO, 6 years old, against her will and consent.
"CONTRARY TO LAW." 1
Upon arraignment, appellant, assisted by counsel, pleaded not guilty. Thereafter trial ensued.
The prosecution’s version of the events is based principally on the testimony of the victim Katherine Terrible, Gina Terrible, mother of the victim and wife of the accused, and Dr. Felimon Raymond P. Guerra III of the Jose P. Rizal Memorial Hospital.
Katherine testified that, on November 2, 1998, at around 2:30 in the afternoon, while she and her father, the appellant herein, were inside a room in their house, appellant kissed her lips and made her lick his nipples. Appellant then inserted his penis into Katherine’s mouth and a whitish substance came out of his sex organ. He then inserted his finger into Katherine’s vagina. 2
Gina Terrible, mother of the victim and wife of appellant, recounting her daughter’s revelation of appellant’s dastardly deed, testified that, at about 2:30 in the afternoon of November 3, 1998, she was awakened by Katherine who whispered to her "Mama si Papa ‘yung titi niya sinubo sa bibig ko." Gina then called her brother Noel Pinella and asked the latter to confirm her daughter’s accusation against appellant. When asked by her uncle, Katherine confirmed what she had just told her mother. Gina immediately asked the assistance of her aunt and uncle in filing a complaint. 3
The prosecution witness, Dr. Guerra III, the doctor who conducted the physical examination of Katherine on November 4, 1998, confirmed the claim of the victim that she was raped. Dr. Guerra III testified on the presence of an old genital laceration at 12:00 o’clock position which might have occurred seven or more days prior to the examination, and redness of the labia minora. Said findings are contained in the medico-legal certificate which was presented as evidence. 4
Appellant denied the charge and testified that, on November 2, 1998, the time of the alleged rape, he was in his father’s house in Barrio Bañadero, Calamba, Laguna which is three kilometers away from their house at Barangay San Cristobal, Calamba, Laguna; that he stayed there until November 3, 1998 and did not visit his family. Appellant’s alibi was corroborated by his siblings Glecilda and Glen Terrible. Appellant further alleged that the crime was only imputed to him as his wife’s way of exacting revenge because of their deteriorating relationship.chanrob1es virtua1 1aw 1ibrary
The trial court did not accord credence to the testimony of the appellant, pointing out that the defense of denial and alibi cannot prevail against the affirmative testimony of Katherine who was only 6 years old at the time she was subjected to appellant’s sexual perversity. Furthermore Katherine’s testimony was both impeccable and straightforward.
On October 20, 1999, the regional trial court rendered a decision finding appellant guilty as charged:jgc:chanrobles.com.ph
"ACCORDINGLY, this Court finds accused Mario Terrible y Oña GUILTY beyond reasonable doubt of the crime of rape as defined and penalized under Article 266-B, Chapter III of the Revised Penal Code, as amended by R.A. 8353, and hereby sentences him to suffer the penalty of DEATH.
"Accused is further directed to indemnify the victim Katherine Terrible the sum of Fifty Thousand Pesos (P50,000.00) as and for moral damages.
"With costs against the accused.
"SO ORDERED." 5
Insisting on his innocence, appellant now attributes the following errors to the trial court:chanrob1es virtual 1aw library
I. THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONY OF THE VICTIM, KATHERINE TERRIBLE.
II. THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT MARIO TERRIBLE GUILTY OF RAPE DESPITE THE INSUFFICIENCY OF THE PROSECUTION EVIDENCE THAT WOULD WARRANT A CONVICTION BEYOND A REASONABLE DOUBT.
III. THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE DEFENSE OF ALIBI INTERPOSED BY THE APPELLANT, WHICH IS MORE CREDIBLE.chanrob1es virtua1 1aw 1ibrary
Appellant questions the veracity of the victim’s testimony and describes it as incredible. He cites the following circumstances as indicative of the lack of credibility. First, at the time of the alleged rape, the victim remained silent. According to appellant, Katherine should have cried aloud or shouted to catch the attention of her grandmother who was then at their house, stressing that neither was he armed nor did he threaten the victim. Second, Katherine’s explanation of her failure to report the alleged rape to her mother for fear of her parents separating was unbelievable. To appellant, if that was really the case Katherine should have kept mum about what appellant did to her but the child eventually told her mother just the same. Appellant insists that the crime was only imputed to him as a revenge initiated by his wife, the victim’s mother, whom appellant describes as an extremely jealous woman who would go to the extent of using her own child to exact revenge. 6
In the prosecution for rape, the credibility of the complainant’s testimony is the ,single most important issue. In the case at bar, appellant denies the rape and essentially raises the issue of credibility of witnesses. Well entrenched is the rule that the finding of the trial court on the credibility of witnesses is entitled to great weight on appeal unless cogent reasons necessitate its re-examination, the reason being that the trial court is in a better position to hear firsthand and observe the deportment, conduct and attitude of the witnesses. 7 In the present case, the trial court declared the victim’s testimony to be credible, stating that "despite her age, she testified in a categorical, frank and firm manner that, on the whole, the court found her story impeccable and unblemished." Thus we take a second look at Katherine’s testimony:jgc:chanrobles.com.ph
"FISCAL
"Q. Do you believe in God?
"A. Yes, sir.
"Q. Do you know how to pray?
"A. Yes, sir.
"Q. Do you believe and do you know that telling a lie is a sin?
"A. Yes, sir.
"Q. So, you know that you are here because you are required to tell the truth and nothing but the truth?
"A. Yes, sir.
"Q. Attached to the record is a Certificate of Live Birth of Katherine Terrible already marked as Exhibit ‘F’ showing that she was born on?
"A. November 3, 1992, sir.chanrob1es virtua1 1aw 1ibrary
"Q. You said that you are already 6 years old, can you write your name?
"A. Yes, sir.
"Q. I am now showing to you a signature in the Complaint marked as Exhibit ‘A’ over the typewritten name Katherine Terrible, is that your signature?
"A. Yes, sir.
"Q. The accused here is your father?
"A. Yes, sir.
"Q. Is he in Court now?
"A. Yes, sir.
"Q. Now, will you kindly point to him?
"A. There, sir.
"INTERPRETER:chanrob1es virtual 1aw library
Witness pointed to the accused.
"FISCAL:jgc:chanrobles.com.ph
"Q. Now, there is here a statement attached to the record showing that you gave a statement to the police when you were investigated at around 3:20 in the afternoon of November 4, 1998, again there is a signature over the typewritten name Katherine Terrible at the bottom of the statement, is that your signature also?
"A. Yes, sir.
"Q. Now, you were asked this question: ‘Ilang taon ka na?’ ‘Anim na po.’ Is that you answer.
"A. Yes, sir.
"Q. You were also asked this question: ‘Ano ang pangalan ng Papa mo?’ ‘Mario Terrible po.’ Is that your answer?
"A. Yes, sir.
"Q. Now, you were also asked this question: ‘Ano ang ginawa sa iyo ng Papa mo?’
"A. He inserted his private part into mine, sir.
"Q. What else did he do to you?
"A. Something white came out from his private part and then he inserted his finger into my private part and then he kissed my private part and he also have me licked his breast.
"Q. And then you were asked this question: ‘Kailan ito ginawa ng iyong Papa?’
"A. November 2.
"Q. Why do you remember that date?
"A. It was my brother’s birthday.
"Q. What is the name of your brother?
"A. Kuya Richard.
"Q. You were also asked this question: ‘Ilang beses na bang ginagawa ito ng papa mo?’
"A.’Marami na po.’
"Q. Then you were also asked this question: ‘Saan ba ito ginagawa ng Papa mo?’
"A. In our room.
"Q. In your own house?
"A. Yes, sir.
"Q. At Aquino Compound, San Cristobal?
"A. That is correct?
"Q. Now, can you tell the Court where your mother is at that time when these things were done to you by your father?
"A. She attended the birthday party of my brother.
"Q. Where did your Kuya Richard celebrate his birthday?
"A. In their house.
"Q. How old is your Kuya Richard?
"A. I do not know.
"Q. Is he married already?
"A. No, sir.
"Q. Is he working?
"A. No, sir he is studying.
"Q. And where is your Kuya Richard living at the time these things were done to you by your father?
"A. In their house at Makati.
x x x
"Q. You were also asked this question: ‘Totoo bang lahat ang sinasabi mo at hindi ka nagsisinungaling?’chanrob1es virtua1 1aw 1ibrary
"A. No, sir.
"Q. When you said ‘no sir,’ are you saying that you are telling the truth?
"A. Yes, sir.
"Q. Why did you not go with your mother into your Kuya Richard’s birthday?
"A. Because I was told that I cannot go with her because according to my mother no one will be left for my brothers and no one will cook our rice.
"Q. What did you feel when your father inserted his finger into your private part?
"A.’Para po akong nanginginig.’
"Q. How about when your father inserted his organ into your mouth?
"A. Nakakadiri po.
"Q. Did you ask your father why he was doing these things to you at that time?
"A. No, sir.
"Q. Why were you not able to ask him?
"A. Because I was afraid, sir.
"Q. Do you know who is this Gina Cornejo Terrible?
"A. Yes, sir.
"Q. Who is she?
"A. My mother, sir.
"Q. Did you tell your mother of (sic) what your father did to you sometime on November 2, 1998 at around 2:30 in the afternoon?
"A. I told my mother.
"Q. And what did your mother do?
"A. He called for my Uncle Junjun and daddy.
"Q. And do you know what your uncle and Junjun did after your mother told them?
"A. My uncle Junjun took a bolo and was holding the bolo.
"Q. What did he do with the bolo?chanrob1es virtua1 1aw 1ibrary
"A. Nothing, sir. 8
Even on cross-examination, her statements reveal nothing but candidness, thus:jgc:chanrobles.com.ph
"Q. Do you know already how to cook rice?
"A. Yes, sir.
"Q. How long?
"A. From the time my mother taught me how to cook.
"Q. How about your mother, is she working?
"A. No, sir, she is staying in the house.
"Q. But she was allowing you to cook rice?
"A. Yes, sir.
"Q. On November 2, 1998 when the alleged rape happened, where is Kevin at that time?
"A. He was in the living room.
"Q. How about Sugar?
"A. Also in the living room, sir.
"Q. And Kem is also in the living room?
"A. Yes, sir.
"Q. You said that this is not the first time your father did this to you, before this transpired, have you not told this to anybody specially to your mother?
"A. No, sir.
"Q. You did not tell that even to your mother?
"A. I told her, sir.
"x x x
"Q. Before, you said that your father inserted his organ to your mouth. Before that, what did he do to you?
"A. He first held his private part.
x x x" 9
Katherine’s testimony shows that she unhesitatingly pointed to her father as the person who sexually violated her and she graphically described the nauseating manner in which the crime was perpetrated against her. Her testimony was simple and straightforward, consistent and unwavering. When the victim’s testimony of her violation is corroborated by the physician’s findings of penetration, then there is sufficient foundation to conclude the existence of carnal knowledge. 10
Appellant attempts to make an issue out of the victim’s failure to shout for help inasmuch as her grandmother was at home at the time of the rape. As aptly pointed out by the Solicitor General, however, the victim of appellant’s bestiality is her own daughter who was barely 6 years old when the crime was committed. Confused and horrified as she was while being subjected to her father’s deviant sexual behavior, her tender age prevented her from resisting the sexual intrusion of her father. She just trembled in terror. 11 The workings of the human mind under emotional stress are unpredictable and there is no standard form of behavior when one is confronted by a shocking incident. More so, if one is a victim of a misfortune which in the victim’s young mind, is beyond comprehension. 12
Appellant also makes much capital of Katherine’s failure to immediately divulge the rape committed against her to her mother. She has satisfactorily explained her hesitation, however:jgc:chanrobles.com.ph
"Q. You were also asked this question: ‘Ilang beses na bang ginagawa ito ng Papa mo?’
"A.’Marami na po.’chanrob1es virtua1 1aw 1ibrary
"Q. Then you were also asked this question: ‘Saan ba ito ginagawa ng Papa mo?’
"A. In our room.
"Q. In your own house?
"A. Yes, sir.
"Q. At Aquino Compound, San Cristobal?
"A. That is correct.
"x x x
"Q. You were also asked this question? ‘Bakit hindi mo isinusumbong sa Mama mo?’
"A. Because I was afraid that they might separate from each other and because I am afraid that my mother might leave the house." 13
Corollarily, her sworn statement dated November 4, 1998 pertinently reads:jgc:chanrobles.com.ph
"6. T: Ilang beses na bang ginagawa ito sa iyo ng PAPA mo?
S: Maraming beses na po.
"7. T: Saan ba ito ginagawa ng PAPA mo?
S: Sa loob ng kuwarto namin.
"8. T: Bakit hindi mo isinumbong sa MAMA mo?
S: Huwag daw po akong magsusumbong at baka daw po sila maghiwalay." 14
The foregoing testimony reveals that the reason why she failed to disclose the repeated sexual molestation against her was because appellant had threatened that her parents would separate and her mother would leave their home. To a child, nothing can be more frightening than the thought of losing a mother, specially when her own father is putting her through hell. The Court has ruled that delay, in making a criminal accusation does not impair the credibility of a witness if such delay is satisfactorily explained. 15 Fortunately for Katherine, she was able to muster enough courage to tell her mother the sexual assaults she had been enduring at the hands of appellant. Apparently the victim could no longer stand her father’s revolting perversity which she described as nakakadiri.chanrob1es virtua1 1aw 1ibrary
Appellant also claims that his wife was merely impelled by revenge in filing of the rape case because of the latter’s extreme jealousy. Not a few accused in rape cases, in fact, have attributed similar charges against them to family feuds, resentment or revenge. These supposed motives have never swayed the Court against lending credence to the testimony of complainants who remain firm and steadfast in their account of how they are ravished by sex offenders. Courts are seldom if at all convinced that a mother would stoop so low as to subject her daughter to physical, mental and emotional, hardship concomitant to a rape prosecution just to assuage her own hurt feelings. 16 No mother in her right mind would subject her child to the humiliation, disgrace and trauma attendant to a prosecution for rape, if she were not motivated solely by the desire to incarcerate the person responsible for her child’s defilement. 17
Appellant’s defense of alibi was properly rejected by the trial court. He insisted that, at the time the rape happened, he was in his father’s house in Barrio Bañadero, Calamba, Laguna. However, considering that the place where he supposedly was is merely 3 kilometers away from their house, a distance which could be easily reached by readily available means of transportation, this defense cannot prevail over Katherine’s positive identification of appellant. 18
Courts have always looked on the defense of alibi with suspicion and have invariably received it with caution not only because it is inherently weak and unreliable but also because it is easily fabricated. For alibi to serve as basis for acquittal, it must be established with clear and convincing evidence. The requisites of time and place must be strictly met. 19 Where the accused fails to convincingly demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of its commission, as in this case, the defense of alibi must be rejected. 20
The guilt of appellant having been established beyond reasonable doubt, we discuss now the propriety of the imposition of the death penalty.
Article 335 of the Revised Penal Code, as amended by RA 7659 and further amended by RA 8353, was renumbered to Articles 266-A and 266-B of the Revised Penal Code, the pertinent portions of which provide:jgc:chanrobles.com.ph
"Art. 266-A. Rape. When and how committed. — Rape is committed —
"1.) By a man who shall have carnal knowledge of a woman under any of the following circumstances:chanrob1es virtual 1aw library
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
d) When the offended party is under twelve years of age or is demented, even though none of the circumstances mentioned above be present.chanrob1es virtua1 1aw 1ibrary
"2.) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object, into the genital or anal orifice of another person.
"Art. 266-B. Penalties. — Rape under paragraph 1 of the next preceding article shall be punished by reclusion perpetua.
"x x x
"The death penalty shall also be imposed. if the crime of rape is committed with any of the following aggravating/qualifying circumstances:jgc:chanrobles.com.ph
"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;
"x x x
"Rape under paragraph 2 of the next preceding Article shall be punished by prision mayor.
"x x x
"Reclusion temporal shall also be imposed if the rape is committed with any of the ten aggravating/qualifying circumstances mentioned in this article."cralaw virtua1aw library
In the case at hand, while it was alleged in the information that appellant is the father of the victim who is under 18 years of age, the supreme penalty of death cannot be properly imposed. Had appellant been prosecuted under the paragraph 1 of Article 266-A, the stated circumstances would call for the imposition of the death penalty. However, appellant was charged with rape under paragraph 2 of Article 266-A. Under Article 266-B, when rape defined under paragraph 2 of Article 266-A is committed with any of the ten aggravating/qualifying circumstances mentioned in the same Article 266-B, only the penalty of reclusion temporal shall be imposed.chanrob1es virtua1 law library
It would be a denial of appellant’s constitutional right to be informed of the charges against him and, consequently, a denial of due process if he is charged with rape under paragraph 2 of Article 266-A but convicted of the qualified form under paragraph 1 thereof which is punishable with death although the same was not alleged in the indictment on which he was arraigned. 21
It is most unfortunate and definitely a sad reflection on the thoroughness of the prosecutor who prepared and filed the Information that while the prosecution was able to prove the commission of the crime committed under the paragraph 1 of Article 266-A, the Information itself did not contain the allegations necessary for appellant’s conviction under said provision.
In view of the foregoing considerations, the Court is constrained to reduce the penalty to reclusion temporal. There being no mitigating or aggravating circumstance, the penalty shall be imposed in its medium period in accordance with Article 64 of the Revised Penal Code. Applying said provision, the penalty of reclusion temporal in its medium period, or 17 years and 4 months, should be imposed on appellant. Under the Indeterminate Sentence Law, said penalty constitutes the maximum term, while the minimum shall be within the range of the penalty next lower to that prescribed by the Revised Penal Code for the offense which is 10 years of prision mayor.chanrob1es virtua1 1aw 1ibrary
Finally, appellant is ordered to pay an additional amount of P50,000 as civil indemnity on top of the P50,000 moral damages awarded by the trial court.
WHEREFORE, the decision of the Regional Trial Court, Branch 34, of Calamba, Laguna in Criminal Case No. 6234-98-C is hereby MODIFIED.
Appellant Mario Terrible y Oña is found guilty beyond reasonable doubt of rape as defined under paragraph 2 of Article 266-A of the Revised Penal Code, and is hereby sentenced to suffer the indeterminate penalty of 10 years of prision mayor as minimum to 17 years and 4 months of reclusion temporal as maximum. In line with prevailing jurisprudence, appellant is further ordered to pay the victim Katherine Terrible the amount of P50,000 as moral damages and an additional amount of P50,000 as civil indemnity.chanrob1es virtua1 1aw 1ibrary
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.
Austria-Martinez, J., on leave.
Endnotes:
1. Rollo, p. 7.
2. TSN, January 12, 1999, pp. 4-5.
3. TSN, February 24, 1999, pp. 3-4.
4. Records, p. 3.
5. Rollo, pp. 19-20.
6. Appellant’s Brief, pp. 5-8.
7. People v. Sacapaño, 313 SCRA 650 [1999].
8. TSN, February 12, 1999, pp. 3-7.
9. Ibid., pp. 8-10.
10. People v. Bation, 305 SCRA 253 [1999].
11. TSN, February 12, 1999, pp. 6-7.
12. People v. Ybañez, G.R. No. 136257, February 14, 2001.
13. TSN, Feb. 12, 1999, pp. 5-6.
14. Records, p. 4.
15. People v. Tanail, 323 SCRA 667 [2000].
16. People v. Marcelo, 305 SCRA 105 [1999].
17. People v. Silvano, 309 SCRA 362 [1999].
18. People v. Parrazo, 272 SCRA 512 [1997].
19. People v. Cañada, 253 SCRA 277 [1996].
20. People v. Javier, 311 SCRA 122 [1999].
21. People v. Sandoval, 348 SCRA 476 [2000].
