SECOND DIVISION
G.R. No. 215331, January 23, 2017
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LUDIGARIO BELEN Y MARASIGAN, Accused-Appellant.
D E C I S I O N
PERALTA, J.:
Before us on appeal is the Decision1 dated July 11, 2014 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 05610, affirming the Decision2 dated December 20, 2010 of the Regional Trial Court (RTC) of San Mateo, Rizal, Branch 76, which convicted Ludigario Belen y Marasigan (appellant) of two counts of simple rape.
On February 2, 2006, appellant was charged with qualified rape under Article 266-A (1) (a), in relation to Article 266-B (6) (1) of the Revised Penal Code, as amended by Republic Act (RA) No. 8353 and in further relation to Section 5 (a) of RA 8369 in two separate informations, the accusatory portions of which state:chanRoblesvirtualLawlibrary
Criminal Case No. 9563
That sometime in July 1999 in the Municipality of San Mateo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, taking advantage of his moral ascendancy, with intent to cause or gratify his sexual desire, by means of force, violence and intimidation, through the use of a deadly weapon - a knife, did then and there willfully, unlawfully and feloniously, have carnal knowledge of AAA,3 an eight (8)-year-old minor, against her will and without her consent; the crime having been attended by the qualifying circumstances of relationship the complainant being the daughter of his common-law wife, and minority, thereby raising the said crime to that of QUALIFIED RAPE, which is aggravated by the circumstances of treachery, evident premeditation, abuse of superior strength and dwelling, to the damage and prejudice of the said victim.
Contrary to Law.4
Criminal Case No. 9564
That sometime in July 1999 in the Municipality of San Mateo, Province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, taking advantage of his moral ascendancy, with intent to cause or gratify his sexual desire, by means of force, violence and intimidation, through the use of a deadly weapon - a knife, did then and there willfully, unlawfully and feloniously, have carnal knowledge of AAA, an eight (8)-year-old minor, against her will and without her consent; the crime having been attended by the qualifying circumstances of relationship-the complainant being the daughter of his common-law wife, and minority, thereby raising the said crime to that of QUALIFIED RAPE, which is aggravated by the circumstances of treachery, evident premeditation, abuse of superior strength and dwelling, to the damage and prejudice of the said victim.
Contrary to Law.5
WHEREFORE, judgment is hereby rendered as follows:chanRoblesvirtualLawlibrary
1. In Criminal Case No. 9563, accused Ludigario Belen y Marasigan is hereby found GUILTY beyond reasonable doubt of the crime of Simple Rape and sentencing him to suffer the penalty of Reclusion Perpetua and to pay the victim the amount of Php50,000.00 as civil indemnity, Php50,000.00 as moral damages and Php25,000.00 as exemplary damages.
2. In Criminal Case No. 9564, accused Ludigario Belen y Marasigan is hereby found GUILTY beyond reasonable doubt of the crime of Simple Rape and sentencing him to suffer the penalty of Reclusion Perpetua and to pay the victim the amount of Php50,000.00 as civil indemnity, Php50,000.00 as moral damages and Php25,000.00 as exemplary damages. No pronouncement as to cost.
Accused Ludigario Belen y Marasigan is to be credited for the time spent for his preventive detention in accordance with Art. 29 of the Revised Penal Code as amended by RA 6127 and EO 214.
Accused Ludigario Belen y Marasigan is hereby ordered committed to the National Bilibid Prisons in Muntinlupa City for service of sentence.30
Article 266 – A. Rape: When and How Committed. – Rape is committed:chanRoblesvirtualLawlibrary1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:ChanRoblesVirtualawlibrary
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 (12) years of age or is demented, even though none of the circumstances mentioned above be present.
Q. Where were you sometime in the month of July 1999 around 4:00 in the afternoon which is the subject of this complaint?
A. I was in our house at Purok I, sir.
Q. What were you doing at that time?
A. I was playing, sir.
Q. You were then, as you said, 8 years old?
A. Yes, sir.
Q. And at that time who were there in your house?
A. Ludigario Belen, sir.
Q. While you were playing outside your house, what, if any, transpired at around 4:00 in the afternoon?
A. He called me, sir.
Q. Who called you?
A. Ludigario Belen.
Q. And what did you do after you were called?
A. I approached him, sir.
Q. And what happened next after that?
A. He asked me to go inside the house.
Q. What happened next after that?
A. He locked the door, sir.
Q. And after locking the door of your house, what, if any, did he do if he had done anything?
A. He told me to remove my clothes, sir.
Q. Did you comply?
A. Yes, sir.
Q. Why did you comply?
A. Because he threatened me, sir.
Q. How did he threaten you?
A. He poked a knife at me, sir.
Q. You said that you had undressed, what were you wearing then at that time?
A. I was wearing shorts, sir.
Q. And what were your undergarments?
A. Shorts and panty, sir.
Q. What were your upper garments at that time?
A. T-shirt, sir.
Q. You said that you removed your clothes.
A. Yes, sir.
Q. Including your undergarments?
A. Yes, sir.
Q. After that what transpired next after that?
A. He asked me to bend over, (pinatuwad) sir.
Q. Thereafter, what did he do to you?
A. He removed his shorts, sir.
Q. After he removed his shorts, what did he do if he had done anything?
A. That was the time he raped me, sir.
Q. How did he rape you, can you describe what he did to you?
A. He inserted his penis to my vagina, sir.
Q. After inserting his private part into your private part, what did he do to you?
A. He moved on top of me, sir.
Q. How did he move, can you describe it?
A. In an up and down movement, sir.
Q. When he was doing this, what were you doing?
A. I was just crying, sir.32
Q. In the month of July, how many times were you raped?
A. Three times, sir.
Q. More or less, what time of the day would have this occurred, the second time that you were raped?
A. 7:00 o'clock in the evening.
Q. The first incident in July, you said that it was committed at around 4:00 o'clock in the afternoon in 1999?
A. Yes, sir.
Q. The second time was also at 7:00 o'clock in the month of July?
A. Yes, sir.
Q. The second time that this happened to you in the month of July 1999 at around 7:00 o'clock in the evening, what were you doing then, if you can remember?
A. I was seated inside our house, sir.
Q. What were you doing then, at that time?
A. None. I was just sitting, sir.
Q. And what did the accused do to you?
A. He called me, sir.
Q. What is the full name of the accused?
A. Ludigario Belen, sir.
Q. What is his relation to you again?
A. He is my stepfather (tatay-tatayan), sir.
Q. He is not your biological father?
A. No, sir.
Q. So the second time that this happened to you in the year 1999, what did he do while you were inside your house at around 7:00 o'clock in the evening?
A. Inutusan po nya ako na maghubad ako dahil gagalawin nya ako, sir.
Q. Did you do what you were told to do?
A. Yes, sir.
Q. You said that he asked you to remove your clothes, what were you wearing then at that time?
A. Shorts and panty.
Q. After removing it, what if, any, happened next after that?
A. Pinatuwad po nya ako and then he inserted his penis, sir.
Q. Where were you at that time?
A. I was inside the room, sir.
Q. You were on the floor, on what part of the room were you stooping down?
A. Inside the room of my mother, sir.
Q. On the floor or what kind of furniture?
A. On the floor, sir.
Q. After he had done that, what did he do to you?
A. He went on top of me, sir.
Q When you say "moving" what kind of motion was he doing?
A. He was moving up and down, sir.
Q. At that time, what clothes was he wearing?
A. He removed, sir.
Q. Madam witness, you said that he went on top of you, after going on top of you, what did he do?
A. No more, he dressed up, sir.
Q. You said that he was moving back and forth, how did he do that?
A. While he was on top of me and he did that sir.
Q. You said that before that, you were asked to stoop down?
A. Yes, sir.
Q. Then you said that he went on top of you, what did he do to turn you over?
...
Q. Madam witness you said that you were first asked to stoop down?
A. Yes, sir.
Q. On the floor?
A. Yes, sir.
Q. And then you testified before the Honorable court that he went on top of you?
A. Yes, sir.
Q. So how did it happen that you were facing him when he went on top of you when you said that he first asked you to stoop down, that would mean that if you are stooping down, your back was facing him, not your head facing him?
A. After asking me to stoop down, he told me to lie down, that is why I was facing him, sir.
Q. After he had gone on top of you, what did he do, if he had done anything?
A. He mashed my breast, sir.
Q. After doing that, what else did he do?
A. He continued what he was doing, sir.
Q. What was he doing?
A. He was moving on top of me, sir.
Q. While he was doing that, what were you doing?
A. I was crying, sir.
Q. Why were you crying when you said he was just on top of you.
A. Because he inserted his penis in my vagina and after that he moved sir.
Q. How long did he continue moving on top of you?
A. More than half an hour, sir.
Q. After that you said that he just left you there inside the room?
A. Yes sir and he told me to dress up.33
A perusal of the AAA's testimony reveals that the prosecution did not proffer leading questions. Assuming arguendo that the questions are leading, the defense failed to object as soon as the alleged leading questions were asked. It is too late in the day for appellant to object to the formulation of the offer and the manner of questioning adopted by the public prosecutor. Appellant should have interposed his objections in the course of the oral examination of AAA, as soon as the grounds therefor became reasonably apparent. As it were, he raised not a whimper of protest as the pub!ic prosecutor recited his offer or propounded questions to AAA. Worse, appellant subjected AAA to cross-examination on the very matters covered by the questions being objected to; therefore, he is barred from challenging the propriety thereof or the admissibility of the answers given.37
It is settled that laceration is not an element of the crime of rape. The absence of lacerations does not negate rape. The presence of lacerations in the victim's vagina is not necessary to prove rape; neither is a broken hymen an essential element of the crime. x x x
x x x x
We accordingly reject accused-appellants arguments which hinge on alleged inconsistencies between the statements made by the private complainant vis-a-vis the medical examination and report. The medical report is by no means controlling. This Court has repeatedly held that a medical examination of the victim is not indispensable in the prosecution for rape, and no law requires a medical examination for the successful prosecution thereof. The medical examination of the victim or the presentation of the medical certificate is not essential to prove the commission of rape as the testimony of the victim alone, if credible, is sufficient to convict the accused of the crime. The medical examination of the victim as well as the medical certificate is merely corroborative in character.39
In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the following guidelines in appreciating age, either as an element of the crime or as a qualifying circumstance.
1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date ofbirth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:chanRoblesvirtualLawlibrarya. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old;chanrobleslaw
b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old;chanrobleslaw
c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.
4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims mother or relatives concerning the victims age, the complainants testimony will suffice provided that it is expressly and clearly admitted by the accused.
5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.
6. The trial court should always make a categorical finding as to the age of the victim.
In the case at bar, several documents were presented in court indicating the very young age of the victim; first, while assisted by her grandmother, AAA stated in her Sinumpaang Salaysay that she was five (5) years of age; second, the Request for Genital Exam indicated that AAA was five (5) years old; third, the Sexual Crime (Protocol) Form stated that the age of AAA was five (5) years old; fourth, the Initial Medico-Legal Report showed that AAA was five (5) years of age; fifth, Medico-Legal Report No. R07-757 reflected that AAA was five (5) years old; sixth, the personal circumstances of the victim when she testified on June 24, 2008 stated that AAA was five (5) years old and she likewise answered that she was five (5) years old when asked about her age; and seventh, the accused failed to controvert that AAA was four (4) years old at the time the crime was committed when the court inquired about it while he was testifying.
In this particular case, these pieces of evidence, together with the physical appearance of the victim when she testified, would have been sufficient basis for !he lower court to ascertain the tender age of the victim when the crime was committed. Furthermore, the Medico-Legal Report prepared by Police S/Insp. Dr. Ebdane, a government physician who took an oath as a civil service official, means that she is competent to examine persons and issue medical certificates which will be used by the government. As such, the Medico-Legal Report carries the presumption of regularity in the performance of her functions and duties. As regards the other documents, under Section 44,45 Rule 130, Revised Rules of Court, entries in official records made in the performance of official duty are prima facie evidence of the facts therein stated. To be sure, in the absence of proof to the contrary, law enforcement agencies of the government similarly enjoy the presumption of regularity in the performance of their official functions. Verily, if baptismal certificates or school records are allowed to be presented in court to establish the age of the victim in the absence of a birth certificate, with more reason should Medico-Legal Reports and comparable documents be allowed to ascertain such circumstance in similar cases.
Consequently, notwithstanding the fact that AAA's original or duly certified birth certificate, baptismal certificate or school records, were never presented by the prosecution, the Court agrees with the lower court and the appellate court that AAA's minority was duly established by the evidence on record.
Endnotes:
* Designated Additional Member in lieu of Associate Justice Francis H. Jardeleza, per Special Order No. 2416-A dated January 4, 2017.
1 Penned by Associate Justice Vicente S.E. Veloso, with Associate Justices Jane Aurora C. Lantion and Nina Antonio –Valenzuela, concurring, rollo, pp. 2-18.
2Id. at 42-46; Per Judge Josephine Zarate-Fernandez.
3 The real names of the victim and her immediate family members as well as any information which could establish or compromise her identity are withheld pursuant to People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419.
4 Records, pp. 1-2
5Id.
6Id. at 31-32.
7 TSN, February 4, 2009, p. 3.
8Id. at 3-4.
9Id. at 5.
10Id. at 6.
11Id.
12Id. at 6-7.
13Id. at 9-10; TSN, March 23, 2009, p. 5.
14 TSN, March 23, 2009, p. 6.
15Id. at 7-8.
16Id. at 9.
17Id. at 9-10.
18 TSN, May 14, 2009, p. 10.
19 TSN, October 9, 2008 p. 3.
20Id. at 4-5.
21Id. at 5.
22 TSN, September 11, 2008, p. 3.
23Id. at 4.
24Id.
25 TSN, November 10, 2008, p. 2.
26 TSN, July 19, 2010, pp. 3-4.
27Id. at 4, 8.
28Id. at 4.
29Id. at 5.
30 Records p. 122.
31Id. at 30-31; 34-35.
32 TSN, February 4, 2009, pp. 5-6.
33 TSN, March 23, 2009, pp. 4-8.
34People v. Aguilar, G.R. No. 185206, August 25, 2010, 629 SCRA 437, 449.
35 People v. Bustamante, G.R. No.l89836, June 5, 2013, 697 SCRA 411, 422.
36People v. Colentava, G.R. No. 190348, February 9, 2015, 750 SCRA 165, 181; People v. Musa, G.R. No. 143703, November 29, 2001, 371 SCRA 234, 248, citing People v. Pajo, G.R. Nos. 135109-13, December 18, 2000, 348 SCRA 492.
37Rollo, p. 14.
38 G.R. No.142662, August 14, 2001, 362 SCRA 778, 787.
39People v. Ferrer, supra, at 788.
40Id.
41 TSN, October 9, 2008, p. 7.
42People v. Colentava, supra note 36, at 182.
43People v. Menaling, G.R. No. 208676, April 13, 2016.
44People v. Bustamante, G.R. No. 189836, June 5, 2013, 697 SCRA 411, 423, citing People v. Mangune, G.R. No. 186463, November 14, 2012, 685 SCRA 578, 590.
45 TSN, July 19, 2010, p. 7.
46People v. Rullepa, G.R. No.131516, March 5, 2003, 398 SCRA 567, 581, citing People v. Perez, G.R. No. 129213, December 21, 1999, 319 SCRA 622.
47 Revised Penal Code, Art. 266-B, as amended by Rep. Act No. 8353 (1997).Article 266-8. Penalties.
x 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:chanRoblesvirtualLawlibrary
"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;
48People v. Garcia, G.R. No. 206095, November 25, 2013, 710 SCRA 571, 584-585.
49Id. at 585.
50 G.R. No. 138471, October 10, 2002, 390 SCRA 577.
51 Records, p. 91.
52 G.R. No. 217024, August 15, 2016.
53 G.R. No. 202124, April 5, 2016.
54Nacar v. Gallery Frames and/or Felipe Bordey, Jr., 716 Phil. 267 (2013).