RULE 110 SECTION 11 (Criminal Procedure0

G.R. No. 174656 [Formerly G.R. Nos. 155271-73] PEOPLE OF THE vs. ZALDY IBAEZ y FRANCISCO, Appellant. May 11, 2007 The NBIs medical examination in Living Case No. MG-99-477 revealed that AAAs hymen had an old-healed laceration at the four oclock position and that the hymenal orifice admitted a tube 2.5 cm. in diameter.7 Appellant denied raping his daughter. As alibi, he claimed that he was often away from home and usually returned only four days after because he was hooked on gambling and drugs. He would usually return home in the morning after his wife had gone to work to avoid quarrels. By then, AAA would already be in school. He admitted being in a rehabilitation center for sometime, but continued to take drugs upon his release. He also admitted that he would beat and threaten his wife if she did not give him money for drugs. He testified further that in January 1999, he left the house, stayed in Pasig and returned home only to steal his wifes car. His wife threatened to have him arrested if he did not return the car. He asked his cousin to return it minus the stereo. When he returned home, his family had gone and he started to sell their things to buy shabu.8 After trial, the lower court found appellant guilty beyond reasonable doubt of the crime of qualified rape in Criminal Cases Nos. 7197-99 and 7199-99. Appellant was acquitted in Criminal Case No. 7198-99. The dispositive portion of the Decision9 dated July 17, 2002 reads: WHEREFORE, finding the accused guilty beyond reasonable doubt of the felony of rape as charged in the informations in criminal cases nos. 7197-99 and 7199-99, said accused is hereby sentenced to die by lethal injection and to pay the private complainant the amount of P50,000.00 as indemnity, another sum of P50,000.00 as moral damages, P25,000.00 as exemplary damages and the cost of this suit. The accused however is hereby acquitted of the felony of rape as charged in the information in criminal case no. 7198-99. SO ORDERED.10 Hence, the instant resort to automatic review of appellants conviction.1awphi1.nt Following People v. Mateo,11 the case was transferred and referred to the Court of Appeals. Upon review, the Court of Appeals rendered its Decision 12 dated May 31, 2006, affirming with modification the decision of the lower court. The fallo of the decision reads: WHEREFORE, appeal is hereby DISMISSED and the assailed July 17, 2002 Decision of the Regional Trial Court of xxx, Cavite, Branch 21, is hereby AFFIRMED with the MODIFICATION that accused-appellant Zaldy Ibaez is sentenced to DEATH for each conviction in Criminal Cases Nos. 7197-99 [and] 7199-99 and accused-appellant Zaldy Ibaez is hereby ORDERED to pay private complainant AAA P150,000.00 as civil indemnity and P100,000.00 as moral damages. Pursuant to Section 13 (a), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M. No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004, the Court of Appeals, after rendering judgment, hereby refrains from making an entry of judgment and forthwith certifies the case and elevates the entire record of this case to the Supreme Court for review. SO ORDERED.13 Before us, appellant raises this issue for our resolution: THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING THE INFORMATIONS IN CRIMINAL CASES NOS. 7197-99 AND 7199-99 INSUFFICIENT TO SUPPORT A JUDGMENT OF CONVICTION FOR FAILURE OF THE PROSECUTION TO STATE THE PRECISE DATES OF THE COMMISSION OF THE ALLEGED RAPES, IT BEING AN ESSENTIAL ELEMENT OF THE CRIME CHARGED.14 Simply stated, should the precise dates of the commission of the rape be alleged in the information?

PHILIPPINES,

Appellee,

Appellant Zaldy Ibaez y Francisco was charged with three counts of Rape under three informations, docketed as Criminal Cases Nos. 7197-99, 7198-99 and 7199-99, before the Regional Trial Court (RTC), xxx, Cavite, Branch 21. The informations read: CRIMINAL CASE NO. 7197-99 That sometime in June 1997, in xxx, Cavite, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, with lewd designs and by taking advantage of his moral ascendancy over his own daughter, AAA, then twelve (12) years old and by means of force, threat and intimidation, did, then and there, wilfully, unlawfully and feloniously lie and have sexual intercourse with AAA, a minor, against her will and consent. CONTRARY TO LAW.1 CRIMINAL CASE NO. 7198-99 That during the period January to December 1998, in xxx, Cavite, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, with lewd designs and by taking advantage of his moral ascendancy over his own daughter, AAA, then thirteen (13) years old and by means of force, threat and intimidation, did, then and there, wilfully, unlawfully and feloniously lie and have sexual intercourse with AAA, a minor, against her will and consent. CONTRARY TO LAW.2 CRIMINAL CASE NO. 7199-99 That sometime in April 1999, in xxx, Cavite, Philippines, and within the jurisdiction of this Honorable Court, above-named accused, with lewd designs and by taking advantage of his moral ascendancy over his own daughter, AAA, [then] fourteen (14) years old and by means of force, threat and intimidation, did, then and there, wilfully, unlawfully and feloniously lie and have sexual intercourse with AAA, a minor, against her will and consent. CONTRARY TO LAW.3 When arraigned, appellant entered pleas of not guilty. Whereupon, trial on the merits ensued. On the first charge of rape, AAA testified that she was in their home at xxx, Cavite in June 1997.1awphi1.nt Her mother was in Isabela at the time. Her youngest sibling, BBB, and she were sleeping inside her parents room when her father carried BBB and placed BBB on the floor. He told her to be quiet as he undressed her, kissed her lips, her breasts, then inserted his penis in her vagina. He was on top of her for around 10 minutes. She kept still because she was afraid of him, as she had always been because he was a drug dependent. Though he did not threaten her, she told no one of the incident.4 On the second charge of rape, AAA testified that appellant raped her eight times from January to December 1998 in their home and she did not tell her mother because she was afraid of appellant.5 AAA testified that the third rape happened sometime in the morning of April 1999 in their house while her mother was at work. Appellant called her to come in her parents room. When she refused, he came out, took her by the arms and dragged her into the room. Inside, he undressed her, kissed her body and raped her. After the incident, she told a cousin what happened and the latter brought her to the National Bureau of Investigation (NBI) where her complaint-affidavit was executed.6

RULE 110 SECTION 11 (Criminal Procedure0

In his brief, appellant contends that he should have been acquitted in Criminal Cases Nos. 7197-99 and 7199-99. He avers that the informations are not explicit and certain as to the dates of the rape. He argues that such uncertainties run afoul of the constitutionally protected right of the accused to be informed of the nature and cause of the accusation against him. On the other hand, the Office of the Solicitor General (OSG) submits that the two criminal informations filed against appellant are sufficient to inform appellant of the accusations against him. The OSG contends that Section 6, Rule 110 15 of the Rules of Court merely requires that the information state "the approximate time of the commission of the offense." Further, Section 1116 of the same rule provides that the precise date of the commission of the offense needs to be alleged in the information only when "it is a material ingredient of the offense." After considering the submissions of the parties, we find appellants contention devoid of merit. An information is valid as long as it distinctly states the elements of the offense and the acts or omissions constitutive thereof. The exact date of the commission of a crime is not an essential element of the crime charged. Thus, in a prosecution for rape, the material fact or circumstance to be considered is the occurrence of the rape, not the time of its commission.17 The gravamen of the offense is carnal knowledge of a woman. The precise time of the crime has no substantial bearing on its commission. Therefore, it is not essential that it be alleged in the information with ultimate precision.18 Also, it cannot be seriously asserted that appellant was deprived of his constitutional right to be informed of the nature and cause of the accusation against him when the prosecution failed to state the exact date of the commission of the offense. This Court has previously upheld complaints and informations in prosecutions for rape which merely alleged that a rape has been committed "sometime in the month of April 1993," for a rape which was committed in 1993; "on or about May 1998," for a rape committed sometime in the first week of May 1998; and "sometime in the month of September 1998," for a rape committed on an evening in September 1998.19 The allegation in the informations that the appellant committed the rape "sometime in June 1997" 20 and "sometime in April 1999"21 was sufficient to inform appellant that he was being charged of qualified rape committed against his daughter. The allegation adequately afforded appellant an opportunity to prepare his defense. Thus, appellant cannot complain that he was deprived of his right to be informed of the nature and cause of the accusation against him. At any rate, it is now too late for appellant to question the sufficiency of the criminal informations regarding the dates of the commission of the offense. Appellant could have filed a motion for a bill of particulars before his arraignment22 or a motion to quash on the ground that the informations alleged erroneous dates prior to his entry of plea.23 However, he did not. Instead, he had himself arraigned and entered a plea of not guilty to the crime of rape. Such being the case, appellant has waived his right to object to the informations on the ground of an error as to the time of the alleged rape. Appellant also alleged that AAA filed the rape cases to have him imprisoned because of his failure to fulfill his paternal obligations. We are not persuaded by his allegation. When a woman, more so if she is a minor, says that she has been raped, she says in effect all that is necessary to constitute the commission of the crime that has been inflicted on her. This doctrine applies with more vigor when the culprit is a close relative of the victim, and her father at that.24 Besides, no woman, least of all a minor, would concoct a story of defloration, allow an examination of her private parts and subject herself to public trial or ridicule if she has not, in truth, been a victim of rape and impelled to seek justice for the wrong done to her.25 Withal, we are in agreement with the submission of the Court of Appeals and the OSG that the RTC erred in the imposition of the appropriate penalty because it imposed only one penalty of death for two convictions of rape. The penalty imposed on the appellant should be modified so that in each case, the conviction of rape should separately be penalized by death. However, in view of the enactment of Republic Act No. 934626 on June 24, 2006 prohibiting the imposition of the death penalty, the penalty in each case to be meted on appellant is reclusion perpetua in accordance with Section 2 thereof which reads: SEC. 2. In lieu of the death penalty, the following shall be imposed: (a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or (b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. (Emphasis supplied.) Further, this Court upholds the Court of Appeals ruling that the award of damages be modified. Pursuant to prevailing jurisprudence,27 the civil indemnity and moral damages to be awarded are P75,000 and P75,000, respectively, for each conviction of rape which is qualified by circumstances warranting the imposition of the death penalty, and P25,000 as exemplary damages in light of the presence of the qualifying circumstances of minority and relationship. Hence, appellant should pay AAA P150,000 as civil indemnity, P150,000 as moral damages and P50,000 as exemplary damages. WHEREFORE, the Decision dated May 31, 2006 of the Court of Appeals finding appellant Zaldy Ibaez y Francisco guilty beyond reasonable doubt of the crime of qualified rape is AFFIRMED with the following MODIFICATIONS: (1) the penalty of death meted out on the appellant is reduced to RECLUSION PERPETUA, for each count of rape, without eligibility for parole as provided under Rep. Act No. 9346; and (2) the awards of civil indemnity, moral damages, and exemplary damages against appellant are set at P75,000, P75,000, and P25,000, respectively, for each count of rape, or a total of P150,000 as civil indemnity, another P150,000 as moral damages, and P50,000 as exemplary damages, for the two counts of rape, consistent with prevailing jurisprudence. SO ORDERED.

G.R. No. 169059

September 5, 2007 THE PHILIPPINES, appellee,

THE PEOPLE OF vs. LAMBERTO RAFON, appellant.

This treats of the appeal from the Decision1 dated 5 May 2005 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00115 affirming the Decision2 dated 8 July 2002 of the Regional Trial Court (RTC) of Gumaca, Quezon, Branch 61 in Criminal Case Nos. 6204-G and 6694-G where appellant Lamberto Rafon was found guilty of raping his minor daughter and sentenced to suffer the penalty of death. In two (2) separate Informations3 filed on 5 March 1999, appellant was charged, the accusatory portions of which read, thus: Criminal Case No. 6204-G That sometime in the year 1994, at Barangay x x x,4 Municipality of x x x,5 Province of Quezon, Philippines, within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, by means of force, threats and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with one [AAA],6 his own daughter, a minor, 11 years of age, against her will. CONTRARY TO LAW.7 Criminal Case No. 6694-G

RULE 110 SECTION 11 (Criminal Procedure0

That sometime in the year 1998, at Barangay x x x, Municipality of x x x, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, by means of force, threats and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of one [AAA], his own daughter, a minor, 15 years of age, against her will. CONTRARY TO LAW.8 Appellant pleaded not guilty on arraignment. Forthwith, trial ensued which culminated in the guilty verdict. The dispositive portion of the judgment reads, thus: WHEREFORE, based on the foregoing premises, accused LAMBERTO RAFON is hereby found GUILTY beyond reasonable doubt of two (2) counts of rape defined and penalized under Art. 335 of the Revised Penal Code[,] as amended by R.A. [No.] 7659[,] and is hereby imposed the penalty of DEATH for each crime of rape. He is further ordered to indemnify [AAA] the amount of P75,000.00 for each act or P150,000.00. In addition, accused shall pay her likewise P20,000.00 as moral damages and P10,000.00 as exemplary damages for each count of rape or the total amount of P60,000.00. Costs against the accused. SO ORDERED.9 The case was thereafter elevated to this Court on automatic review and the parties were directed to file their respective Briefs.10 The parties complied. However, the Court issued a Resolution11 on 21 September 2004, transferring the case to the CA for intermediate review conformably with the ruling in People v. Mateo.12 The appellate court affirmed the judgment of the trial court with the following modification: WHEREFORE, premises considered, the appeal is DENIED. The assailed Decision dated 8 July 2002 is AFFIRMED with MODIFICATION. Appellant is ordered to pay [AAA] P50,000.00 as moral damages and P25,000.00 as exemplary damages for each count of rape.13 The case is again before us for our final disposition. The evidence for the prosecution consists mainly of the testimonies of private complainant, AAA, and Dr. Cheres Daquilanea, a resident physician of the Doa Marta District Hospital, Atimonan, Quezon. AAA testified that she was born on 3 November 1983 as evidenced by her birth certificate.14 She is one of five children born to appellant and BBB.15 She recounted that appellant first raped her in their house sometime in 1994 when she was in grade five and while her mother was working overseas. Her two younger brothers were at a neighbor's house watching television while her two sisters were studying in the poblacion. Appellant who was drunk allegedly forced her to lie down on the papag and remove her clothes. He then warned her not to make any noise or he would kill her and her siblings. Appellant started kissing her then she felt pain when he inserted his penis inside her vagina and proceeded to have sexual intercourse with her. She tried to cross her legs but was overpowered by her father and she could not do anything but cry silently. She did not report the harrowing experience to anyone for fear that appellant would make good his threats.16 Appellant allegedly raped her several more times thereafter until she was in second year high school, the last incident being sometime in 1998. AAA recalled that the last incident was similar to the first, with the appellant forcing her to lie down and to remove her clothes, and successfully having his way with her. Afraid of what appellant might do to her and her family, AAA did not dare tell her mother BBB of her sufferings in the hands of her father. It was at the instance of her boyfriend to whom she first revealed the truth about her father that she eventually had the courage to tell BBB. When BBB arrived home in January 1999, AAA relayed the rape incidents to her and they both went to the police to report the matter.17 Dr. Daquilanea testified that AAA went to see her on 4 January 1999 at the Doa Marta District Hospital to have herself examined because she was raped.18 Dr. Daquilanea found healed hymenal lacerations in AAA at the 3 o'clock, 6 o'clock, and 9 o'clock positions that according to her could have been caused by sexual intercourse.19 As the lone witness for his defense, appellant denied the charges against him. He testified that AAA is his daughter and he is legally married to BBB. From 1994 to 1998, he worked as a laborer so that he sometimes went to Lopez, Quezon to haul coco lumber.20 Averring that BBB never left their house during the said period, appellant wondered why AAA would file a criminal case against him as he had very cordial relations with her. On cross-examination, however, he testified that BBB had been working as a beautician in Saudi Arabia since 1995 and came home for a vacation every two years.21 His parents allegedly stayed with them in their house while BBB was away. He claimed that it was his brother-in-law, CCC,22 who had a grudge against him because the latter wanted a share in the money sent to him by his wife. CCC allegedly initiated the instant case because he owed appellant P10,000.00 and was angry at him.23 In finding the appellant guilty, the RTC made the following findings, thus: Certainly, the innocent but natural and straightforward testimony of [AAA] alone on [sic] the detailed narration of a pretty girl on [sic] her teens on how she was repeatedly violated by her own father from 1994 to 1998 is sufficient to sustain the conviction of her father. No one indeed would want to go through the troubles and humiliation of a trial for a much debasing offense unless she was really raped and her motive was solely to seek justice. (People v. Gaban, 262 SCRA 598; People v. Campesino, 131 SCRA 56). In fact, it is entitled to greater weight since her accusing words are directed against a close relative, her own father (People v. Lao, 249 SCRA 137). It is indeed extremely difficult to believe that the complainant Arlene, young as she was, could have guile and craft to accuse her father of such heinous crime. xxxx Verily, [AAA] is a credible witness. Her testimony deserves the highest credence. She would not have admitted in public that she was deflowered by her own father unless she was telling the truth for in doing so, she was compromising her family. (People v. Esquila, 254 SCRA 140). The age of [AAA] has been established beyond cavil by her birth certificate (Exh. "B") indicating that she was born on March24 [sic] 3, 1983 and that her name [AAA] as Exh. "B-1" and the name of Lamberto Rafon as her father was marked as Exh. "B-3." Computing her age based on November 3, 1983, her age in 1994 was 11 years old and in 1998 is 15 years old. The relation that exists between the complainant and the accused as daughter and father is established beyond cavil not only as shown in the birth certificate (Exh. "B") but by the testimony of both complainant and the accused. x x x x25 Like the lower court, the appellate court gave full faith and credence to AAA's positive and straightforward testimony as against appellant's bare denial. It stressed that although there were inconsistencies in her testimony as to who removed her clothes and as regards the whereabouts of her siblings at the time of the rape incidents, these are trivial and do not impair her credibility as "a rape victim is not expected to mechanically keep memory details of the rape incident and then when called to testify automatically give an accurate account of the traumatic experience she suffered." 26 It further held that AAA's testimony is corroborated by physical evidence, she having sustained hymenal lacerations. According great respect to the findings and conclusions of the trial court on the credibility of witnesses, the CA affirmed the RTC's decision, modifying it only to increase the award of moral damages from P20,000.00 to P50,000.00 for each count, and similarly increasing the award of exemplary damages from P10,000.00 to P20,000.00 for each count in accordance with jurisprudence. In his brief,27 appellant avers that the court a quo erred: (1) in giving credence to the testimony of AAA, which according to him was unreliable and unbelievable; and (2) in finding him guilty beyond reasonable doubt despite the uncertainty of the commission of the crime charged.

RULE 110 SECTION 11 (Criminal Procedure0

Appellant insists that he cannot be convicted based on AAA's incredible testimony. The absence of a struggle or an outcry during the rape plus the long delay in reporting the incidents defy a woman's natural instinct for self-preservation, he argues. He claims that there was no imminent danger to AAA's life and she had every opportunity to report the incident and to prevent a recurrence but she failed to do so. Questioning the truthfulness of AAA's testimony, he asserted that it reeked of inconsistencies. He maintains that all these cast doubt on the prosecution's evidence which, as a consequence, cannot result in a judgment of guilt. Appellant also challenges the two Informations filed against him for being ambiguous as they did not specify the date or at the very least the month as to when the rape incidents allegedly took place. This, so he stresses, is a denial of due process as no less than the Constitution guarantees that the accused must be informed of the nature and cause of the accusation against him. The allegations that he committed two counts of rape, one in 1994 and another in 1998, deprived him of the chance to interpose the defense of alibi, he concludes. In its brief,28 the Office of the Solicitor General (OSG) maintains that appellant's guilt has been proven beyond reasonable doubt by the positive and credible testimony of AAA. The OSG points out that AAA resisted her father's bestial acts but to no avail and that his moral ascendancy also cowed her to submission. Addressing the inconsistencies in her testimony, the OSG notes that the same are minor and inconsequential and seem more apparent than real. As regards AAA's failure to recall the exact time and date of the commission of the offenses, it observes that the time of commission is not a material ingredient of rape. The OSG adds that appellant did not object to the sufficiency of the Informations before he entered his plea and it is now too late for him to complain. A careful examination of the records as well as the transcripts of stenographic notes of the instant case lead us to affirm appellant's guilt. We shall first address the issue of the insufficiency of the Informations. Appellant argues that the statement only of the year of commission of the offense is too vague so that he was deprived of his constitutional right to be informed of the accusation against him and to fully prepare for his defense. We disagree. It is unnecessary to state in the information the precise date that the offense was committed, except when it is an essential element of the offense.29 The date of commission is not an element of the offense of rape.30 The gravamen of rape is carnal knowledge of a woman under any of the circumstances provided by law. In People v. Bugayong,31 we held that "when the time given in the complaint is not of the essence of the offense, it need not be proven as alleged and x x x the complaint will be sustained if the proof shows that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action."32 In said case, accused therein was charged with raping his stepdaughter several times before and until 15 October 1994 but was convicted of his dastardly acts committed in 1993. The Court therein held that the victim's Sworn Statement which categorically stated that she had been raped by the accused in 1993 when she was in grade three substantially cured the vagueness in the information and considered accused to have been sufficiently informed thereby. Thus, a statement of the year of the commission of the offense, as in the instant case, would suffice. Furthermore, it is too late in the day for appellant to raise this issue. He should have made his objection before he was arraigned. Section 9, Rule 117 of the Rules of Criminal Procedure provides, to wit: The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. As was held in Bugayong, appellant herein cannot be said to have been deprived of his right to be informed. He did not timely object to the alleged defects in the Informations and he actively participated in the trial, defending himself and confronting the witnesses against him. Hence, there was no denial of due process. We now go into the crux of the controversy. We note that appellant was charged with two counts of rape. The first which was committed in 1994 is governed by Art. 335 of the Revised Penal Code (RPC) before the enactment of R.A. No. 8353 or the Anti-Rape Law of 1997.33 As regards the rape incident in 1998, the applicable provisions are Arts. 266-A and 266-B of the RPC,34 as introduced by the Anti-Rape Law of 1997. As to the 1994 rape incident, it was alleged that AAA was only 11 years old at that time. The applicable law then already considered carnal knowledge with a woman under 12 years of age as rape. The offense being statutory rape, what essentially had to be established was simply the fact of having sexual intercourse with AAA. Proof of the use of force in committing the sexual act was unnecessary and superfluous. As regards the rape that occurred in 1998, AAA was already 15 years old at that time. Thus, the offense falls under paragraph 1 (a) of Art. 266-A of the RPC, as amended. This time, the prosecution must prove beyond reasonable doubt that the carnal knowledge occurred through the use of force, threat, or intimidation. In both cases, the offense of rape is qualified 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. Under the new rape law the imposable penalty in that instance is death. As to the 1994 rape incident, AAA categorically testified that appellant had sexual intercourse with her, thus: Q: When was the first time that you were raped by your father [sic], what year? A: 1994, Ma'am. xxxx Q: Now, you said it was nighttime when you were first raped in 1994 by your father. How did you[r] father rape you? A: He laid me down in our papag and there he raped me, Ma'am. Q: After he laid you in the papag, what else did he do if he did any? A: He removed his clothes, Ma'am. Q: And after he removed his clothes, what else did he do? A: He told me not to make noise, Ma'am. Q: Were you wearing clothes at that time or no clothes at all? A: I still have clothes, Ma'am. Q: And after he warned you not to make noise, what else did he do? A: Then he told me to remove my clothes, Ma'am. Q: What did you do when he ordered you to remove your clothes? A: I was forced to remove my clothes, Ma'am. Q: Why were you fo[r]ced to remove your clothes?

RULE 110 SECTION 11 (Criminal Procedure0

A: Because he told me that if I would not do that, he will kill all of us, Ma'am. Q: And where were your brothers at that time? A: Watching TV in the house of our neighbor, Ma'am. Q: And after he [sic] removed your clothes as ordered by your father, what did he do next? A: He raped me, Ma'am. Q: You said you were hinalay. How did he do that? Can you explain to us? You were both naked. What else did he do? A: He placed himself on top of me. Ma'am. Q; When he was on top of you, what did he do? By the way, when your father laid on top of you, where were you? A: In [sic] the papag, Ma'am. Q: And while on top of you, what did your father do? (No answer)You said that you were raped, what did you feel when you were raped as you said? A: I got afraid and I felt that my vagina was painful, Ma'am. Q: Why was your vagina painful[,] Miss Witness? A: Because the penis of my father was inserted, Ma'am. Q: Where was it inserted? A: To [sic] my vagina, Ma'am. Q: And when he inserted his penis to [sic] your vagina, what did you feel, if any? A: It was painful, Ma'am. Q: What [sic] that your first experience? A: Yes, Ma'am. Q; And after his penis was inserted on [sic] your vagina, was he moving or not? A: He was moving, Ma'am. Q: He was moving. How long did he stay on top of you? A: I do not know how long he was on top of me but he stayed long, Ma'am. Q: And after he left you, what did you do, if any? A: I cried, Ma'am.35 [Emphasis supplied] A: In our house, sir. xxxx A: I was angry at myself because I could not defend myself, Ma'am. Q: And why were you afraid? A: Because he might do what he was telling me that he will kill us, Ma'am. xxxx Q: When your mother left for abroad, did your father engage in drinking liquor? A: Yes, sir. xxxx Q: Can you tell this Court in what place does your father used to drink? Q: And how did your father rape you in 1998 last raped you in 1998? A: The same thing was done to me, Ma'am. Q: What is that same thing? What did he do? A: He laid me down and I was told to lay [sic] down and I was ordered to remove my clothes, Ma'am. Q: When you were ordered to lay [sic] down, was he wearing clothes or none? A: No more, Ma'am. Q: And after you removed your clothes, what did he do next? A: He laid on top of me, Ma'am. Q: Then? A: He was touching my breast, Ma'am. Q: Aside from touching your breast, what else did he do? A: He again inserted his penis to [sic] my vagina, Ma'am. Q: And what did you feel while your father was doing that to you? A: I was angry and afraid, Ma'am. Q: Why galit at takot? As regards the rape episode in 1998, AAA testified in a clear-cut manner on the coercion or intimidation exerted by appellant that forced her into sexual intercourse with him. Thus:

RULE 110 SECTION 11 (Criminal Procedure0

Q: Now, on what time of the day do they have drinking session[s] in your house? A: Sometimes in the afternoon, sir. Q: Do they drink in the evening? A: Yes, sir. xxxx Q: Was he under the influence of liquor during that time? A: Yes, sir. xxxx Q: And when your father placed himself on your top, what did you do? A: I was just crying, sir. xxxx Q: You did not box him? A: No, sir. Q: You did not push him away? A: I pinched him, sir. Q: You did not bite him? A: No, sir. Q: Did you not cross your two legs? A: I was trying to do that, sir. Q: What did your father do when you were trying to close your two legs? A: He was trying to separate my legs, sir. xxxx Q: But you did not shout? misapplied some fact or circumstance of weight and substance that would have affected the result of the case; Second, the findings of the trial court pertaining to the credibility of witnesses are entitled to great weight and respect since it had the opportunity to examine their demeanor as they testified on the witness stand; and Third, a witness who testified in a categorical, straightforward, spontaneous and frank manner and remained consistent on crossexamination is a credible witness. 39 The lower court and the appellate court found appellant guilty of rape on both counts. The courts below similarly gave full faith and credence to AAA's testimony. We find no cogent reason to disturb their findings. Appellant's attempt to damage the credibility of AAA is futile. He challenged the truthfulness of her testimony given the following inconsistencies: (1) on direct examination, she stated that she removed her clothes but on cross-examination, she testified that it was her father who undressed her; (2) she narrated that her brothers were watching television at their neighbor's house when her father first raped her but when asked again later, she answered that they were sleeping; and (3) she claimed that her mother was abroad when the rape incidents transpired but her mother never left their house in the years 1994 to 1998 according to appellant. The appellate court correctly held that the adverted inconsistencies are minor and inconsequential. They are plainly insufficient to render complainant's testimony doubtful, more they do not negate the commission of rape. Moreover, the testimony of a witness must be considered and calibrated in its entirety and not in truncated portions or isolated passages.40 If at all, it is appellant who was inconsistent when he first testified that his wife never left the house from 1994 to 1998 and then later stated on cross-examination that he received money from her while she worked as a beautician in Saudi Arabia during those years. Thus, AAA's clear and categorical narration of the sexual assaults against her, free from material inconsistency, deserves full faith and credence especially when set against appellant's bare denial. That she would falsely accuse her own father of committing so grave a crime as rape only to fuel a grudge harbored by her uncle is hardly believable. There is no other conclusion than that her declarations bear the ring of truth. That appellant had sexual intercourse with his daughter in 1994 was sufficiently proven. That he forced her into sexual congress in 1998 was likewise proven. The courts below correctly found that appellant had indeed employed threats and intimidation in order to subject AAA to his evil desires. Threats to kill her and her siblings who lived with a drunkard of a father under one roof coupled with his moral ascendancy and influence over her are sufficient factors to build a climate of psychological terror. It was observed in People v. Melivo,41 that in incestuous rapes, "[t]he rapist perverts whatever moral ascendancy and influence he has over his victim in order to intimidate and force the latter to submit to repeated acts of rape over a period of time. In many instances, he succeeds and the crime is forever kept on a lid. In a few cases, the victim suddenly finds the will to summon unknown sources of courage to cry out for help and bring her depraved malefactor to justice." 42 That ascendancy or influence flows from the father's parental authority over his children and from the latter's correlative duty of reverence and respect towards the former.43 Although we have subsequently held that the moral ascendancy of the accused in incestuous rapes, alone, does not lead to the conclusion that sufficient intimidation was present,44 it may be considered a contributing factor when coupled with other threatening circumstances such as those in this case. Considering the foregoing, we thus find appellant guilty of rape on both counts. The age of AAA at the time of the rape incidents as well as her relationship with appellant were sufficiently established by the prosecution and admitted by appellant. Thus, the lower court correctly meted out to appellant the penalty of death on both counts. However, R.A. No. 9346, entitled an "An Act Prohibiting the Imposition of Death Penalty in the Philippines," signed into law on 24 June 2006, prohibits the imposition of the death penalty. Appellant thus shall suffer only the penalty of reclusion perpetua. We sustain the awards of P75,000.00 and P25,000.00 as civil indemnity and exemplary damages, respectively, for each count of rape but increase the award of moral damages from P50,000.00 to P75,000.00 for each count in line with prevailing jurisprudence.45

A: No, sir, I was just crying.36 [Emphasis supplied] At the core of almost all rape cases is the issue of credibility of witnesses, 37 and the trial court is in the best position to resolve the question, having heard the witnesses and observed their demeanor during trial.38 In assessing the credibility of witnesses, this Court has laid down the following parameters, thus: First, the appellate court will not disturb the factual findings of the lower court unless there is a showing that it had overlooked, misunderstood, or

RULE 110 SECTION 11 (Criminal Procedure0

WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED with MODIFICATION. Appellant Lamberto Rafon is GUILTY beyond reasonable doubt of two counts of qualified rape and is sentenced to suffer the penalty of reclusion perpetua for each count. For each count of rape, he is hereby ordered to pay private complainant P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages. Costs against appellant. SO ORDERED. AAA is the third child in a brood of eight children born to appellant and BBB. She was 12 years of age in the year 1996 when the alleged incidents of rape took place. Sometime in the year 1996, at around 5:00 in the afternoon, she and her younger siblings, namely, CCC, DDD, EEE and FFF, were left at their house with appellant, while BBB was at the market buying food. Appellant told CCC, DDD and EEE to play outside the house. AAA was then cooking rice when appellant instructed her to go inside the bedroom. When AAA was already inside the room, appellant ordered her to lie down on the cemented floor. When she did, appellant placed himself on top of her and removed her shorts and panty. She screamed "Tulungan po ninyo ako!" and resisted, but to no avail because appellant pressed his feet against hers. Appellant then removed his shorts and brief and thereafter inserted his penis into her vagina. AAA felt pain but she could not move because appellant held both her hands above her head. Appellant told her, "Wag kang maingay, papatayin kita." plaintiff-appellee, After satisfying his lust, appellant stood up and left the bedroom. AAA proceeded to the house of BBBs kumare, Aling Leony, to forget and recover from the incident. She did not inform BBB of the incident because of her fear that appellant would make good his threats to kill her. For the second time, one evening of May 1998, AAA and her younger siblings were sleeping on the cemented floor inside the bedroom when appellant entered and lay down beside her. Appellant pulled her left arm and made her lie in a straight body position. He removed his shorts and placed himself on top of her. He then pulled down her shorts and panty, and again inserted his penis into her vagina. Despite the pain, AAA did not shout because appellant threatened to kill her. Subsequently, appellant stood up and reiterated his threat to kill her if she would tell anyone what happened. For the third time, in the evening of May 1998, while AAA and her younger siblings were sleeping inside the bedroom, appellant lay down beside her. Appellant pulled her left arm and made her face him. Appellant placed himself on top of her and removed her shorts and panty. Thereafter, he had carnal knowledge of her. She did not shout out of fear. Afterwards, appellant stood up and warned her not to tell anyone of the incident or he would kill her. From June 1998 to February 1999, appellant was arrested and detained for drug pushing. In the meantime, AAA was employed as a house helper. After his release from jail, appellant would go to see AAA at her employers house demanding money and creating a scene when AAA refused to give him any. Fed up, AAA sneaked out of her employers house and proceeded to the nearby barangay hall to report, not just the commotion caused by appellant in front of her employers house when she did not give him money, but also that appellant previously raped her several times. Hence, appellant was arrested by PO3 Deduque and PO3 Baldeswis, and charged with rape.6 BBB was not able to accompany AAA in filing the instant case against appellant because she was also detained for drug pushing and was released only on 5 December 1999. Upon her release from jail, she immediately sought AAA and, when informed of the incident, she fully supported AAA in the instant case against appellant.7 Dr. James Belgira (Dr. Belgira), a physician of the Philippine National Police (PNP) Crime Laboratory, personally examined AAA. His findings, as stated in the medicolegal report, are as follows: FINDINGS: GENERAL AND EXTRAGENITAL: Fairly developed, fairly nourished and coherent female subject. Breasts are conical with dark brown areola and nipple from which no secretions could be pressed out. Abdomen is flat and soft. GENITAL:

G.R. No. 177150

November 22, 2007 PHILIPPINES,

PEOPLE OF THE vs. WILLIAM CHING, accused-appellant.

For review is the Decision of the Court of Appeals in CA-G.R. CR-HC No. 01798 dated 3 August 2006,1 affirming with modifications the Decision of the Quezon City Regional Trial Court (RTC), Branch 107, in Criminal Cases No. Q-99-87053, Q-99-87054, and Q-99-87055 dated 4 August 2004,2 convicting accused-appellant William Ching of three counts of rape committed against his minor daughter, AAA.3 The factual antecedents are as follows: On 1 October 1999, three separate informations4 were filed with the RTC against appellant for qualified rape allegedly committed as follows: CRIMINAL CASE NO. Q-99-87053 That in or about the month of May, 1998, in XXX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent. CRIMINAL CASE NO. Q-99-87054 That in or about the month of May, 1998, in XXX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent. CRIMINAL CASE NO. Q-99-87055 That in or about the year of 1996, in XXX, Philippines, the said accused by means of force and intimidation, to wit: by then and there, willfully, unlawfully and feloniously drag said AAA, his own daughter, 12 years of age, minor, inside a bedroom and undressed her and put himself on top of her and thereafter have carnal knowledge with said AAA against her will and without her consent. Subsequently, these informations were consolidated for joint trial. When arraigned on 6 March 2000, appellant, with the assistance of counsel de oficio, pleaded "Not Guilty" to each of the charges in the informations.5 Thereafter, trial on the merits ensued. The prosecution presented as witnesses AAA, AAAs mother, BBB, PO3 Jesus Deduque (PO3 Deduque), PO3 Melba Baldeswis (PO3 Baldeswis), and Dr. Angel Cordero (Dr. Cordero). Their testimonies, taken together, present the following narrative:

RULE 110 SECTION 11 (Criminal Procedure0

There is scanty growth of pubic hair. Labia majora are full, convex and slightly gaping with an area of erythematous at the middle of the left labium and the dark brown labia minora presenting in between. On separating the same disclosed an elastic, fleshy-type hymen with shallow healed lacerations at 5 and 9 oclock position. External vaginal orifice offers moderate resistance to the introduction of the examining index finger. Vaginal canal is narrow with prominent rugosities. Cervix is firm and closed. CONCLUSION: Subject is in non-virgin state physically. There are no external signs of application of any form of physical trauma.8 However, in view of the unavailability of Dr. Belgira to personally appear before the trial court, it was Dr. Cordero, another physician at the PNP crime laboratory, who appeared in court for the purpose of producing and interpreting the medical records of AAA and confirming that the same was conducted in accordance with the protocol of the PNP.9 The prosecution also presented documentary evidence to bolster its version of the events, to wit: (1) Sinumpaang Salaysay of AAA10; (2) marriage contract of BBB and appellant11; (3) the baptismal certificate of AAA with her date of birth entered as 12 August 198312; (4) letter referral of Police Station 4, Novaliches, Quezon City, of the instant case to the Office of the City Prosecutor13; (5) joint sworn affidavit of the arresting officers14; (6) the medico-legal report with regard to AAA issued and signed by Dr. Belgira as the medico-legal officer of the PNP Crime Laboratory15; (7) the routing slip from the PNP Crime Laboratory16; (8) request for laboratory examination forwarded by Police Station 4 to the PNP Crime Laboratory17; (9) the initial laboratory report issued by the PNP Crime Laboratory18; (10) the sexual crime narrative report based on the narration of AAA19; and (11) manifestation of consent executed by AAA as accompanied by PO3 Baldeswis.20 Appellant singly testified in his own behalf and denied the foregoing accusations. He admitted that AAA is his daughter and third child with his wife, BBB. From 1992 to 1996, he worked as a driver, but he was detained for selling drugs in 1997. He was released on 29 March 1998, but he was again imprisoned for robbery and drug cases. While he was in jail, he learned that BBB asked AAA to find a job and that BBB was subsequently detained for drugs. Upon his release from jail in February 1999, appellant immediately went home and found his eldest son taking care of his other children. On several occasions, he would see AAA at her employers house to ask for money. This purportedly irked AAA and the latters employer. It was AAAs employer and BBB who coached AAA to file rape charges against appellant.21 On 27 July 2004, the RTC rendered a Decision convicting appellant of three counts of rape. In Criminal Case No. Q-99-87055, the Court imposed on appellant the penalty of reclusion perpetua. In Criminal Cases No. Q-99-87053 and Q-99-87054, appellant was sentenced to death. The dispositive portion of the decision reads: WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that the prosecution established the guilt of the accused beyond reasonable doubt and is therefore found guilty of the offenses charged. The accused is hereby sentenced: 1. In Crim. Case No. Q-99-87055: a. To suffer the penalty of reclusion perpetua; b. To indemnify the private complainant AAA the amount of P50,000.00 by way of civil indemnity; c. To pay the private complainant AAA the amount of P50,000.00 for exemplary damages; d. To pay the private complainant AAA the amount of P50,000.00 for moral damages; e. To pay the costs of the suit; 2. In Crim. Case No. Q-99-87053: a. To suffer the penalty of DEATH; b. To indemnify the private complainant AAA the amount of P75,000.00; c. To pay the private complainant AAA the amount of P75,000.00 for exemplary damages; d. To pay the private complainant AAA the amount of P75,000.00 for moral damages; f. To pay the costs of the suit; and 3. In Crim. Case No. Q-99-87054: a. To suffer the penalty of DEATH; b. To indemnify the private complainant AAA the amount of P75,000.00; c. To pay the private complainant AAA the amount of P75,000.00 for exemplary damages; d. To pay the private complainant AAA the amount of P75,000.00 for moral damages; and e. To pay the costs of the suit. In the event, however, that the accused shall be pardoned by the President, he is, however, forever barred from showing himself to the private complainant. He must not approach the private complainant; he shall never contact the private complainant directly or indirectly either by letters, telephone, cellphone or send text messages or with the use of any electrical devices.22 In view of the penalty imposed upon appellant, the RTC elevated the records of the case directly to the Court of Appeals for review pursuant to our ruling in People v. Mateo.23 On 3 August 2006, the Court of Appeals promulgated its Decision, affirming with modifications the Decision of the RTC, thus: WHEREFORE, premises considered, the Decision dated 27 July 2004, promulgated on 04 August 2004, of the Regional Trial Court of Quezon City, Branch 107 convicting accused-appellant William Ching of three (3) counts of qualified rape in Crim. Cases Nos. Q-99-87053, Q-99-87054, Q99-87055 is AFFIRMED with the MODIFICATION that the sentence imposed on appellant is reduced to reclusion perpetua for each count of qualified rape, in lieu of death penalty, by reason of Republic Act No. 9346, and that pursuant to said law, accused-appellant shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. Further, accused-appellant is ordered to pay the victim AAA the amounts of P75,000.00 for civil indemnity, another P75,000.00 for moral damages and P25,000.00 for exemplary damages for each count of qualified rape.24 Before us, appellant assigns a single error, to wit: THE TRIAL COURT ERRED IN NOT CONSIDERING THE INFORMATIONS CHARGING THE ACCUSED-APPELLANT OF THE CRIME OF RAPE INSUFFICIENT TO SUPPORT A JUDGMENT OF CONVICTION FOR FAILURE OF THE PROSECUTION TO STATE WITH PARTICULARITY THE APPROXIMATE DATE OF THE COMMISSION OF THE ALLEGED RAPES.25

RULE 110 SECTION 11 (Criminal Procedure0

Appellant maintains that the approximate time of the commission of the offense must be stated in the complaint or information; that the informations in the instant case do not state the approximate time of the alleged rapes; that the informations are fatally defective; that the date and time of the alleged rapes are so indefinite thereby depriving appellant of the opportunity to prepare for his defense; and that appellants constitutional right to be informed of the nature and cause of accusation against him was violated.26 The contentions are devoid of merit. An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court.27 To be considered as valid and sufficient, an information must state the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. 28 The purpose of the requirement for the informations validity and sufficiency is to enable the accused to suitably prepare for his defense since he is presumed to have no independent knowledge of the facts that constitute the offense.29 With respect to the date of the commission of the offense, Section 11, Rule 110 of the Revised Rules of Criminal Procedure specifically provides that it is not necessary to state in the information the precise date the offense was committed except when it is a material ingredient of the offense, and that the offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. In rape cases, failure to specify the exact dates or times when the rapes occurred does not ipso facto make the information defective on its face. The reason is obvious. The date or time of the commission of rape is not a material ingredient of the said crime because the gravamen of rape is carnal knowledge of a woman through force and intimidation. The precise time when the rape took place has no substantial bearing on its commission. As such, the date or time need not be stated with absolute accuracy. It is sufficient that the complaint or information states that the crime has been committed at any time as near as possible to the date of its actual commission.30 In sustaining the view that the exact date of commission of the rape is immaterial, we held in People v. Purazo31 that: We have ruled, time and again that the date is not an essential element of the crime of rape, for the gravamen of the offense is carnal knowledge of a woman. As such, the time or place of commission in rape cases need not be accurately stated. As early as 1908, we already held that where the time or place or any other fact alleged is not an essential element of the crime charged, conviction may be had on proof of the commission of the crime, even if it appears that the crime was not committed at the precise time or place alleged, or if the proof fails to sustain the existence of some immaterial fact set out in the complaint, provided it appears that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information within the period of the statute of limitations and at a place within the jurisdiction of the court. This Court has upheld complaints and informations in prosecutions for rape which merely alleged the month and year of its commission.32 In People v. Magbanua,33 we sustained the validity of the information for rape which merely alleged the year of its commission, thus: Although the information did not state with particularity the dates when the sexual attacks took place, we believe that the allegations therein that the acts were committed "on (sic) the year 1991 and the days thereafter" substantially apprised appellant of the crime he was charged with since all the essential elements of the crime of rape were stated in the information. As such, appellant cannot complain that he was deprived of the right to be informed of the nature of the case filed against him. An information can withstand the test of judicial scrutiny as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof. There is no cogent reason to deviate from these precedents especially so that all the essential elements of rape were also stated in the informations. Hence, the allegations in the informations which stated that the three incidents of rape were committed in the year 1996 and in May 1998 are sufficient to affirm the conviction of appellant in the instant case. Since the sole issue raised by appellant was resolved by this Court in favor of the validity of the informations filed against him, then the subsequent trial court proceedings and the resulting judgment of conviction against appellant should likewise be affirmed, there being no other questions raised by appellant as to them. We further uphold the penalty imposed on appellant by the Court of Appeals. Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, was the law applicable in the year 1996, the time the first rape was committed. On the other hand, Republic Act No. 8353, otherwise known as the Anti-Rape Law of 1997, was the law pertinent to the two rapes committed in May 1998. Both laws state that the death penalty shall be imposed if the rape victim is a minor and the offender is a parent. The qualifying circumstances of minority of the victim and the latters relationship with the offender must be alleged in the complaint or information and proved during the trial to warrant the imposition of the death penalty.34 The informations in Criminal Cases No. Q-99-87053, Q-99-87054 and Q-99-87055 specifically alleged that AAA was a minor at the time she was raped and that the offender, herein appellant, is her father. The prosecution also proved during the trial the presence of the qualifying circumstances of minority and relationship through documentary and testimonial evidence. As a rule, the best evidence to prove the age of the offended party for the purpose of appreciating the qualifying circumstance of minority is an original or certified true copy of the certificate of live birth of such party. However, in the absence of a certificate of live birth, similar authentic documents, such as a baptismal certificate, which show the date of birth of the victim would suffice to prove age.35 In the case at bar, the prosecution was not able to present the birth certificate of AAA because, according to BBB, the birth of AAA was not registered with the appropriate government agencies. BBB testified during the trial that at the time she gave birth to AAA through the assistance of a comadrona, the latter told her that a neighbor known only as comadre volunteered and suggested to register the birth of AAA together with the registration of birth of comadres child; that to the best of her knowledge, comadre registered the birth of AAA; that when AAA was about to enroll in school, she went to the Quezon City Hall to secure a birth certificate of AAA but she was told therein that there are no records of birth of AAA; that she talked with comadre because the latter took all the necessary papers relevant to the birth of AAA; and that comadre told her that such papers were lost.36 Nonetheless, BBB submitted AAAs baptismal certificate dated 23 August 2001 issued by Rev. Fr. Romeo M. Castro, SVD, Parish Priest of Sacred Heart Parish, Kamuning, Quezon City.37 The baptismal certificate states that AAA was born on 12 August 1983. This implies that AAA was about 13 years old at the time she was raped by appellant in 1996, and that she was barely 14 years and 9 months old when she was twice raped by appellant in May 1998. The baptismal certificate also states that appellant is the father of AAA. Further, the prosecution adduced the marriage contract of appellant and BBB showing that they were married on 29 February 1980.38 Appellant admitted that AAA is his daughter and BBB is his wife.39 Given the foregoing considerations, the penalty of death for each of the three counts of rape committed against AAA is proper. However, in view of the effectivity of Republic Act No. 9346 prohibiting the imposition of the death penalty, the penalty to be meted to appellant shall be reclusion perpetua in accordance with Section 2 thereof which reads: SECTION 2. In lieu of the death penalty, the following shall be imposed: a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code. Notwithstanding the reduction of the penalty imposed on appellant, he is not eligible for parole following Section 3 of said law which provides:

RULE 110 SECTION 11 (Criminal Procedure0

SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended. We also sustain the award of damages made by the Court of Appeals in favor of AAA for each of the three rapes. The award of civil indemnity in the amount of P75,000.00 is the correct amount to be awarded if the crime is qualified by circumstances that warrant the imposition of the death penalty. With respect to moral damages, the amount of P75,000.00 is fitting even though it was not pleaded or its basis established by evidence, pursuant to prevailing jurisprudence.40 Further, the award of exemplary damages in the amount of P25,000.00 is authorized due to the presence of the qualifying circumstances of minority and relationship.41 WHEREFORE, after due deliberation, the Decision of the Court of Appeals in CA-G.R. C.R.-H.C. No. 01798 dated 3 August 2006 is hereby AFFIRMED in toto. No costs. SO ORDERED. Hence, accused-appellants indictment. Accused-appellant denied the accusation and gave his side of the case as follows: He could not have raped AAA as his job as a canvasser of plastic wares required him to be out of the house most of the time, except on Saturdays, albeit he would return home in the afternoon or evening.[8] Appellants wife BBB corroborated his claim. Branch 58 of the RTC of Lucena City, however, found the testimony of AAA clear, consistent, direct and without any hesitation when confronted by the presence of her own abuser.[9] It discredited appellants defense of alibi, there being no proof that it was physically impossible for him to be at the place, date and time of the commission of the offense. The trial court thus disposed in its Judgment of September 11, 2003:[10] WHEREFORE, accused MELITON JALBUENA y TADIOSA of Bgy. Ilayang Nangka, Tayabas, Quezon, is hereby found guilty beyond reasonable doubt of the crime of statutory rape, defined and punished under Article 335 of the Revised Penal Code, as amended by R.A. 7659; and in the absence of any mitigating circumstance and with the special aggravating circumstances of minority and relationship alleged and duly proven by the prosecution, Meliton Jalbuena y Tadiosa is hereby sentenced to suffer the extreme penalty of DEATH. Further, accused is hereby ordered to pay to the offended party, [AAA] the amounts of P75,000.00, as civil indemnity, P50,000.00, as moral damages, and P25,000.00, as exemplary damages. The Jail Warden, Quezon Provincial Jail, Lucena City, is hereby ordered to immediately deliver the person of Meliton Jalbuena y Tadiosa to the National Bilibid Prisons, Muntinlupa City, and to remain thereat until the penalty imposed upon him may be served. The Branch Clerk of Court is hereby directed to forward the entire records of this case to the Supreme Court, Manila, for automatic review of the case pursuant to the provision of Article 47 of the Revised Penal Code, as amended.[11] (Emphasis in the original; underscoring supplied) This case was forwarded to this Court for automatic review in view of the death penalty imposed. Per People v. Mateo,[12] however, this Court referred the case to the Court of Appeals by Resolution of July 26, 2005.[13] The appellate court, finding that the testimony of AAA is credible and free from material inconsistencies and contradictions, affirmed the Judgment of the trial court by Decision of November 18, 2005,[14] disposing as follows: WHEREFORE, premises considered, the appealed judgment dated September 11, 2003 of the Regional Trial Court of Lucena City, Branch 58 in Criminal Case No. 96601 finding MELITON JALBUENA y TADIOSA guilty of Statutory Rape and sentencing him to suffer the supreme penalty of DEATH is hereby AFFIRMED. In accordance with A.M. No. 00-5-03-SC which took effect on October 15, 2004, amending Section 13, Rule 124 of the Revised Rules of Criminal Procedure, let the entire records of this case be elevated to the Supreme Court for review.[15] (Emphasis in the original) Hence, the present review of the case. By Resolution of February 21, 2006, this Court required the parties to submit Supplemental Briefs within 30 days from notice if they so desire.[16] Both parties filed their respective Manifestations that they are no longer filing any Supplemental Briefs.[17] In his Brief filed before the appellate court, accused-appellant faulted the trial court (1) for convicting him despite the failure of the prosecution to prove his guilt beyond reasonable doubt and (2) in not considering the information insufficient to support a judgment of conviction for failure to state the precise date of the commission of the rape.[18]

10

PEOPLE VS. TABUENA July 4, 2007 x-----------------------------------------------------------------------------x Accused-appellant Meliton Jalbuena y Tadiosa was charged with rape of a daughter, a minor,[1] in an Information, docketed as Criminal Case No. 96-601 before the Lucena City Regional Trial Court, which reads: That on or about the month of August 1996, at Barangay Ilayang Nangka, in the Municipality of Tayabas, Province of Quezon, Philippines[,] and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, by means of force, threats and intimidation, did then and there[,] willfully, unlawfully and feloniously have carnal knowledge of one [AAA], his own daughter, a minor, 11 years of age,[2] against her will.[3] From the evidence for the prosecution, the following version is culled: In the morning of August 19, 1996, while her mother BBB was out of the house, her father-accused-appellant approached AAA while she was in bed, pulled down her underwear, placed himself on top of her, and inserted his penis in her vagina. She was warned not to report the incident to anyone; otherwise, something bad would occur to her.[4] The incident was repeated on two other occasions, the last of which was in the morning and witnessed by her uncle CCC while accused-appellant was on top of her. CCC reported what he saw to AAAs grandfather who merely advised her to avoid her father, to an aunt, as well as to her mother BBB who refused to believe it.[5] AAA later mustered enough courage to narrate her ordeals to two classmates who reported them to their teacher, who in turn reported and brought her to the school principal.[6] On September 12, 1996, Dr. Marilyn Salumbides examined AAA and reduced her findings to writing as follows: P.P.E.: Normal Looking External Genitalia Internal Exam admits tip of finger with difficulty Hymen intact Vaginal Smear taken for Spermatozoa NONE SEEN x x x x[7] (Emphasis supplied)

RULE 110 SECTION 11 (Criminal Procedure0

The second assigned error shall, for obvious reasons, first be resolved. Appellant questions as fatally defective the information for failure to allege the date and time of the commission of the offense charged, thus violating his constitutionally protected right to be informed of the nature and cause of the accusation against him and depriving him of the opportunity to prepare for his defense. Prior to its substantial incorporation in the Revised Rules of Court in 2000, Section 11, Rule 110 of the Rules of Court, reads: Sec. 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when the time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which offense was committed as the information or complaint will permit.[19] (Emphasis and underscoring supplied) In rape, the gravamen of the offense, being the carnal knowledge of a woman, the date is not an essential element, hence, the specification of the exact date or time of its commission is not important. [20] In statutory rape, like in this case, what matters most is that the information alleges that the victim is a minor under twelve years of age and that the accused had carnal knowledge of her.[21] If accused-appellant found the information defective as it bears only the month and year of the incident complained of, he should have filed a Motion for Bill of Particulars, as provided for under Rule 116,[22] before he entered a plea. His failure to do so amounted to a waiver of the defect or detail desired in the information.[23] Indeed, in the case at bar, the criminal complaint states that the rape was committed on or about the month of August 1996. Such an allegation in the criminal complaint as to the time of the offense was committed is sufficient compliance with the provisions of Section 11, Rule 110 of the Revised Rules of Criminal Procedure. Besides, if the appellant was of the belief that the criminal complaint was defective, he should have filed a motion for a bill of particulars with the trial court before his arraignment. The appellant failed to do so. It was only when the case was brought to this Court on automatic review that he raised the question of the supposed insufficiency of the criminal complaint, which is now too late by any reckoning.[24] At all events, accused-appellant participated in the trial and never objected to the presentation of evidence by the prosecution that the rape was committed on or about the month of August 1996. Appellant likewise never objected to the presentation of evidence by the prosecution to prove that the offenses were committed on or about sometime (sic) 1987, prior and subsequent thereto. He cannot now pretend that he was unable to defend himself in view of the vagueness of the allegation in the Information as to when the crimes were committed, as it was shown to the contrary that he participated in the trial and was even able to give an alibi in his defense.[25] (Italics in the original) On the merits, accused-appellant assails the credibility of AAAs testimony that she was raped three times, in light of the finding of Dr. Salumbides that her hymen was intact. And accused-appellant questions the prosecutions failure to present as witness AAAs uncle CCC who allegedly saw him on top of AAA, which failure amounts to, so he claims, willful suppression of evidence. In rape cases, the credibility of the victim is almost always the single most important issue.[26] If the testimony of the victim passes the test of credibility, the accused may be convicted solely on that basis.[27] Significantly, the trial court, passing on AAAs credibility, noted: The credibility of the testimony of the offended party is put to a stringent test in order that it could be said as credible to sustain a conviction. The Court finds [AAAs] testimony to have passed said test. Her testimony given in open court is clear, consistent, direct and without any hesitation when confronted by the presence of her own abuser. It is noted that [AAA] had to tell her story several times to her two classmates, to the teacher, the principal, the police, the doctor, the Municipal Trial Court Judge who conducted the preliminary investigation, to the prosecutor, to the social worker and to this Court, in the presence of the public and her father. Her testimony is one and the same her father sexually abused her not once, but thrice, and that every time she was subjected to this maltreatment, her mother was out of their home, her father would pull down her panty, laid on top of her, placed his sexual organ into her own private part and made push and pull, or rubbing motions (binubundol-bundol o ikinikiskis). Worse, she was always warned not to tell anyone about the incidents or her father would kill her.[28] (Underscoring supplied) Apropos is this Courts taking stock of the fact that when one accuses a close relative of having raped her, as in this case where AAA accused her very own father,[29] her testimony is entitled to greater weight. x x x [A] daughter would not accuse her own father of a serious offense like rape, had she really not been aggrieved. Her testimony against him is entitled to greater weight, since reverence and respect for elders is too deeply ingrained in Filipino children and is even recognized by law. x x x That she would accuse her own father of this heinous crime had she not been aggrieved would be absurd.[30] (Underscoring supplied) Accused-appellants claim that AAA charged him with rape because he would scold her very often does not impress. People v. Bidoc instructs: x x x In previous cases, this Court held that parental punishment or disciplinary chastisement is not enough for a daughter in a Filipino family to falsely accuse her father of rape. She would not subject herself to an examination of her private parts, undergo the trauma and humiliation of public trial, and embarrass herself with the need to narrate in detail how she was raped if she was not in fact raped. It takes depravity for a young girl to concoct a tale of defloration, which would put her own father on death row, drag herself and the rest of her family to a lifetime of shame, and make them the object of gossip among their classmates and friends.[31] (Underscoring supplied) That AAAs hymen remained intact despite the claim of three occasions of rape is not impossible and does not negate a finding that they were committed.[32] A torn or broken hymen is not an essential element of rape, not even when the victim is an innocent child.[33] Dr. Salumbides, on cross- examination, testified that there are several classes of hymen; some are elastic and flexible that even in cases of several deliveries, the hymen remains intact.[34] As to the failure of the prosecution to present AAAs uncle CCC and to proffer a plausible explanation therefor, a prosecutor has the discretion, the prerogative to determine the witnesses he is going to present.[35] In any event, the records show that on the request of the prosecution,[36] several subpoenas[37] for, as well as bench warrants[38] against, CCC were issued. CCC, however, had ceased to reside in Barangay Ilayang Nangka and his whereabouts could not be ascertained. The trial court in fact even reprimanded on one occasion SPO2 Edilberto Conjares, the subpoena/warrant officer of the Philippine National Police in Tayabas, Quezon, for failure to serve the subpoena.[39] On accused-appellants alibi, the rule is settled that for it to prosper, it must be established with clear and convincing evidence not only that he was somewhere else when the crime was committed, but also that it was physically impossible for him to have been at the scene of the crime at the time of its commission.[40] This, accusedappellant failed to do. As reflected above, he admitted that after work, he goes home in the afternoon or early evening.[41] The qualifying circumstances of minority and relationship were alleged and established. Hence, the death penalty imposed by the trial court and affirmed by the Court of Appeals is proper. In view, however, of the subsequent enactment on June 24, 2006 of Republic Act No. 9346, An Act Prohibiting the Imposition of Death Penalty in the Philippines, accused-appellant must be sentenced to suffer the penalty of reclusion perpetua without eligibility for parole.[42] A word on the award of moral damages. In accordance with prevailing jurisprudence, the amount of P50,000 which was awarded by the trial court and affirmed by the appellate court, is increased to P75,000.[43] WHEREFORE, the assailed November 18, 2005 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01496 is AFFIRMED with MODIFICATION in that in lieu of death penalty, accused-appellant, Meliton Jalbuena y Tadiosa, is sentenced to suffer reclusion perpetua without eligibility for parole, and the award of P50,000 for moral damages, is increased to P75,000. SO ORDERED.

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