A.M. No.

RTJ-95-1283 December 21, 1999

Exec. Judge DAVID C. NAVAL and DSWD Secretary CORAZON ALMA DE LEON, complainants,
vs.
Judge JOSE R. PANDAY, RTC, Branch 27, Naga City, Judge SIMON D. ENCINAS, RTC Branch 51, Sorsogon,
and Judge RICA H. LACSON, MTC, Sorsogon, Sorsogon, respondents.

RESOLUTION

PER CURIAM:

From the Decision of the Court dated July 21, 1997, 1 the dispositive portion of which reads:

IN THE LIGHT OF THE FOREGOING, the Court RESOLVES as follows:

1. Judge Jose R. Panday is found administratively liable for immorality and obstruction of justice.
Accordingly, he is DISMISSED from the service, with forfeiture of all retirement benefits and accrued
leaves, and with prejudice to reemployment in any branch or instrumentality of the government,
including government-owned and controlled corporations.

2. Judge Rica H. Lacson is found administratively liable for engaging in notarial services in
connection with cases unrelated to her official functions as municipal judge of Sorsogon.
Accordingly, she is meted a FINE of Ten Thousand Pesos (P10,000.00) with warning that a
repetition by her of similar acts will be dealt with more severely.

3. Judge Simon D. Encinas is found administratively liable for improper conduct or conduct
unbecoming a judge. Accordingly, he is meted a FINE of Twenty Thousand Pesos (P20,000.00) with
warning that are petition of similar acts of impropriety on his part will be dealt with more severely.

SO ORDERED.

Respondent Judge Jose R. Panday filed a Motion for Reconsideration dated August 15, 1997 2 seeking a
partial reconsideration by: a.] absolving him from the charges of immorality and obstruction of justice; b.]
dismissing the same for utter lack of merit; c.] lifting his preventive suspension, and d.] reinstating him to his
position as presiding judge of Branch 27 of the RTC of Camarines Sur, or, in the alternative, to consider him
retired from the service with all his retirement benefits and accrued leaves intact including the removal of the
ban on his employment in any branch or instrumentality of the government-owned and controlled
corporations.

Respondent Judge Simon D. Encinas likewise filed a Motion for Reconsideration dated September 20,
1997 3 praying that the findings of improper conduct or conduct unbecoming a judge be reconsidered with a penalty
less harsh for his "being less than discreet in showing curiosity and concern for a brethren."

Additionally, Judge Encinas filed a "Motion To Pay Fine Subject To The Outcome Of Motion For Reconsideration"
dated October 13, 1997 4 where he, among others, "manifested due respect and good faith in complying with the
Decision . . . by paying the penalty in advance . . . subject to the outcome of the Motion for Reconsideration"
averring, inter alia, that: 1.] on account of his ill health, he filed a disability and/or optional retirement application; 2.]
in order not to suspend due action on his retirement application, he is willing to deposit in cash the amount of the
penalty or to authorize the deduction of the same from his retirement benefits in case the motion for reconsideration
is denied.

The records show that subsequently, Judge Encinas paid the imposed fine of Twenty Thousand (P20,000.00) Pesos
in cash as evidenced by an Official Receipt No. 8450231 dated November 6, 1997 issued by the Collecting Officer
of the RTC of Sorsogon, Branch 51. 5

On February 4, 1999, private complainant filed a Comment/Opposition To Motion for Reconsideration 6 praying that
the motion for reconsideration of respondent Judge Panday be denied for lack of merit to which the latter
subsequently filed a Reply on July 9, 1999.

It appears from the records that no comment and/or opposition was made to the motion for reconsideration filed by
respondent Judge Encinas. It likewise appears that respondent Judge Rica H. Lacson did not file a motion for
reconsideration of the Court's Decision.

In view of this Court's Resolution dated October 21, 1997 which reads:
Acting on the Motion for Reconsideration of the decision of July 21, 1997, filed by counsel for
respondent Judge Simon D. Encinas, dated September 20, 1997, the Court resolved to DENY with
FINALITY the aforesaid motion for reconsideration, as the basic issues raised therein have been
passed upon by the Court in its questioned decision and no substantial arguments were presented
to warrant its reversal.

the Court will concentrate on the motion of respondent Judge Panday.

On the charge of immorality, respondent judge insists that the alleged incident at the Bodega Tigaon did not take
place. In support thereof, he reiterated the testimonial declarations of Wilfredo Bolalin, Domingo Pasibe and Delia
Cea. In sum, the testimonies of Bolalin and Pasibe are to the effect that they were in the immediate vicinity of the
compound of the inn where the alleged incident took place on July 24, 1994 from 11:00 a.m. until the early evening
— the duration of the alleged incident of rape, which took place at around 2:00 p.m. or thereabouts. Bolalin and
Pasibe declared that they observed nothing untoward from their vantage point and that nothing could have
transpired without their knowledge during that busy afternoon where there was even a boxing practice.

Counsel for respondent argues that the foregoing testimonies of Bolalin and Pasibe fall clearly under the category of
positive testimony citing as authorities Revilla v. Court of Appeals 7 and Tanala v. NLRC. 8 These affirmative
testimonial declarations according to counsel ". . . puts in serious doubt the already deemed incredible [as to certain
facts] testimony of the alleged victim Cecile Buenafe."

Respondent Judge and counsel likewise capitalize on the testimony of Delia Cea who declared on the strength of
the Bodega Tigaon's Registry Book for July 1994 9 that with the exception of those customers who checked-in but
requested that their names be not entered in the logbook, no one with the name Jose R Panday or Cecile Buenafe
or persons who bore such names registered and checked-in at the pension house on July 24, 1994.

We remain unimpressed. For all the evidentiary hairsplitting of respondent judge and counsel on what positive and
negative testimony is supposed to be, the primordial questions to be resolved still boils down to the credibility of the
said witnesses' averments.

To reiterate what has been stated earlier in the Decision 10 sought to be reconsidered, such testimonies failed to
convince the Investigating Justice and the Court is likewise not convinced by them. As pointedly observed therein —

. . . [t]he testimonies of Wilfredo Bolalin, Domingo Pasibe and Delia Cea to the effect that they did
not see judge Panday at the Tigaon pension house on 24 July 1994 constitute negative testimonies
which can not prevail over Cecile's positive testimony that she was there with him on the said date.
Testimony is negative when the witness states that did not see or know the occurrence of a fact and
positive when the witness affirms that a fact did or did not occur.11 A positive testimony, such as
Cecile's is stronger than a negative one. The former has more value than the latter for the reason
that he who denies a certain fact may both remember exactly the circumstances on which he bases
his denial. 12

Delia Cea's claim that based on their logbook for July 1994, no one checked in at Bodega Tigaon on
24 July 1994, cannot be relied upon by Judge Panday to support his denial. Cea herself admitted, in
response to the classificatory questions of the Investigating Justice, that there were occasions when
the names of the customers of the pension house were not recorded in the logbook upon request of
the customers themselves.

JUSTICE CALLEJO:

Are you saying that there were times when you did not follow the instructions of the
owner of the pension house?

WITNESS:

No, sir, I usually follow the instructions but there are times the customers request to
me not to sign their names anymore since they knew each other anyway.

JUSTICE CALLEJO:

Is it also possible that, or where (sic) there instances where the customers request
you that they will not be required to sign anymore because the girl[s] that they are
with are not their wives?

WITNESS:

Yes, sir.
JUSTICE CALLEJO:

So there were customers who would like their identities to be unknown, not to be
recorded and sometimes you acceded to the request, is that correct?

WITNESS:

Yes, your Honor. 13

Hence, the fact that Judge Panday's name was not recorded in the logbook kept by the Tigaon
pension house does not prove that he was not there on 24 July 1994. As it was, the logbook failed to
negate Cecile's testimony that she was there with Judge Panday and that they had sexual
intercourse in Room 6 thereof in the afternoon of 24 July 1994. 14

Testimony is affirmative or positive if it consists of statements as to what the witness heard or seen. It is negative if
the witness states that he did not hear or did not see the phenomenon in question. 15 The Court has held in at least
two (2) cases that the testimony of a credible witness that he saw or heard a particular thing at a particular time and
place is more reliable than that of a witness who with the same opportunities, testified that he did not hear or see the
same thing at the same time and place. 16 Moreover, the positive testimony of a single witness is entitled to more
weight and credence than the testimony of several witnesses who testified in the negative or to collateral matters.
Thus, in People v. Tibayan, 17 the sister of the victim testified that she and her father saw the accused shoot her
brother to death while a farmer and his mother testified for the defense that they were near the scene of the crime;
that they did not see the sister of the victim and her father; and that they neither saw the accused and his
companions. In affirming the judgment of conviction, the Court held that the negative testimony of the farmer and his
mother is not conclusive proof that the accused did not shoot the victim nor does it completely belie the sister's
testimony that she and her father witnessed the shooting.

In this case, no weight and credit can be given to the testimonies of Bolalin and Pasibe for while they claim that they
were in the immediate vicinity of the compound of the Bodega Tigaon on the day, time and place of the incident
while there was an ongoing boxing practice, their failure to see and observe the alleged incident can be attributed to
want of particular attention considering their preoccupation with the boxing practice. Moreover, the testimony of a
witness that he does not remember or has no knowledge of a particular matter has little or no weight as against the
direct testimony of a witness who does remember the matter or against the positive evidence that an event occurred
which is not contradicted by a witness' testimony that he does not remember whether it occurred or not. 18

Respondent Judge and counsel further argue that this Court disregarded the inconsistency between prior
statements made by Cecile Buenafe and her testimony in court on account of the inadvertence of confronting her
with the same and allowing her the opportunity to explain such inconsistency as required by the rules. This point
according to respondent Judge and counsel has, however, been rendered moot because this Court as
recommended by the Investigating Justice, found her testimony as incredible in certain parts.

The argument merits no serious thought.

While the Court agreed with the Investigating Justice that indeed certain claims made by Cecile in her testimony
were not worthy of credence, the Court explained in the assailed judgment that —

. . . [a]s correctly assessed by the Investigating Justice, Cecile's false or erroneous claim that she
was raped by Judge Panday does not render her entire testimony unworthy of credence. The Court
is not compelled to reject the entire testimony of a witness if it finds portions thereof to be incredible.
Like trial courts in criminal proceedings, the Investigating Justice tasked by the Court to investigate
the present Administrative Matter had the discretion to accept portions of the testimony of a witness
as he deemed credible and reject those which he believed to be false. The maxim falsus in uno,
falsus in omnibus is not a positive rule of law and is in fact rarely applied in modern
jurisprudence. 19 Before this maxim can be applied, the witness must be shown to have willfully
falsified the truth on one or more material points. Even then, where he is found to have done so, this
does not make his entire testimony totally incredible. The Court, or the Investigating Justice in this
case, may still admit and credit those portions worthy of belief depending upon the corroborative
evidence and the probabilities and improbabilities of the case. 20

The postulate of respondent Judge that the credible portions of the witness' testimony that may be believed are
"ONLY those which are corroborated by other evidence" 21 must likewise be rejected because in addition to
"corroborative evidence" is the qualifier "and the probabilities and improbabilities of the case." It need not be
overemphasized that, given the peculiar facts prevailing in this case, the probability that respondent Judge
committed the act complained of far outweighs its improbability. This is further circumscribed by the oft-repeated
rule that witnesses are weighed not numbered and testimony of a single witness may suffice for conviction if
otherwise trustworthy and reliable. 22
Thus the Court ruled: "[T]hat the prosecution had only one eyewitness hardly affects its cause. There is no law
which requires that the testimony of a single witness needs corroboration except where the law expressly mandates
such corroboration." 23 Verily, criminals are convicted, not on the number of witnesses against them, but on the
credibility of the testimony of even one witness who is able to convince the court of the guilt of the accused beyond
a shadow of doubt. 24 To rephrase what had been said earlier, the Investigating Justice found the testimony of Cecil
Buenafe more convincing than those of respondent Judge's witnesses. So does this Court.

So too must be rejected the contention that since the Court made a finding that Cecile Buenafe was not forcibly
raped by the respondent Judge, this can only lead to the dismissal of the criminal case for rape against him.

It needs be stressed in this regard that in the instant proceeding, respondent judge is being administratively held to
account for serious misconduct or malfeasance in office. The quantum of proof required to establish respondent
Judge's misconduct in the administrative complaint is not proof beyond reasonable doubt but substantial
evidence. 25 It need not be overemphasized that the factual landscape, measured within such an evidentiary matrix,
is strewn with overwhelming proof of respondent Judge's perfidy thus prompting the Court in the challenged
Decision to concur with the Investigating Justice in holding that complainants were able to muster the requisite
quantum of evidence to prove their charges against him.

Moreover, in any prosecution involving an unchaste act perpetrated by a man against a woman where the
willingness of the woman is material such as rape and acts of lasciviousness, the woman's character as to her
chastity is admissible to show whether or not she consented to man's act. 26 Hence, in a prosecution for rape, or for
enticement to prostitution, or in an action or prosecution for indecent assault, the likes of acts of lasciviousness, the
woman's character as to chastity is admissible, but not in a prosecution for rape under the age of consent, because
in a trial for sex offenses where the woman's consent is immaterial and not in issue, it follows that the woman's
unchasitity would likewise be immaterial, like a charge for rape of a woman under twelve (12) years of age. 27

The administrative complaint filed by Cecile Buenafe and the DSWD, through Regional Office No. V, against Judge
Panday is "for immorality for sexual abuse and rape" of Cecile which is defined and penalized under RA No. 7610,
then the subject matter of Criminal Case No. 2990 pending preliminary investigation before the Municipal Circuit
Trial Court of Tigaon-Sangay, Camarines Sur. In this regard, Article III, Section 5 of the statute states in no
uncertain terms that —

Sec. 5. Child prostitution and other sexual abuses. — Children whether male or female, who for
money, profit or any other consideration or due to the coercion or influence of any adult, syndicate or
group, indulge in sexual intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.

In relation to the foregoing, Article I, Section 3 (a) of the same law defines "children" as those "[p]ersons below
eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from
abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability." In this case, Cecile
Buenafe was fifteen (15) years old at that time, a third-year high school student in San Ramon, Lagonoy, Camarines
Sur and of lowly station in life. Needless to state, her case falls within the purview of RA No. 7610.

By having sexual congress with Cecile who was then only fifteen (15) years old, respondent Judge violated the trust
reposed on his high office and utterly failed to live up to noble ideals and strict standards of morality required of
members of the judiciary. Additionally, his subsequent act of offering Cecile's father a substantial amount of money
in consideration for the withdrawal of their charges against him is considered, by law, an obstruction of
justice. 28 That the respondent Judge even reneged on the agreed amount for the withdrawal of the charges against
him only serves to underscore the greater perversity of his character and betrays his disdain for the lowly whose
rights he has sworn to protect. To repeat:

Canon II

Rule 2.00: A judge should avoid impropriety and the appearance of impropriety in all activities.

Rule 2.01: A judge should so behave at all times as to promote public confidence in the integrity and
impartiality of the judiciary.

Only recently, the Court restated in Atty. Lauro D. Gacayan, et al. v. Hon. Fernando Vil Pamintuan 29 the reminder in
the assailed Decision that:

"[A] judge's official conduct should be free from the appearance of impropriety, and his personal
behavior, not only upon the bench should and in the performance of judicial duties, but also his
everyday life should be beyond reproach." Thus, the Court in taking the respondent to task in Sarah
B. Vedana v. Judge Eudarlo B. Valencia 30 minced no words when it said:

. . . his being a public official, holding a position in the Judiciary and specifically
entrusted with the sacred duty of administering justice, breached Canon 2 of the
Code of Judicial Conduct and Canon 3 of the Canons of Judicial Ethics which
mandates respectively, that "a judge should avoid impropriety in all activities", and
that "a judge's official conduct should be free from the appearance of impropriety,
and his personal behavior, not only upon the bench and in the performance of judicial
duties, but also in everyday life, should be beyond reproach." These most exacting
standards of decorum are demanded from magistrates if only, in the language of
Rule 2.01 of Canon 2 of the Code of Judicial Conduct, to "promote public confidence
in the integrity and impartiality of the judiciary."

The spirit and philosophy underlying these Canons is best expressed in Castillo
v. Calanog31 thus:

The Code of Judicial Ethics mandates that the conduct of a judge

must be free of a whiff of impropriety not only with respect to his
performance of his judicial duties, but also to his behavior outside his
sala and as a private individual. There is no dichotomy of morality; a
public official is also judged by his private morals. The Code dictates
that a judge, in order to promote public confidence in the integrity and
impartiality of the judiciary, must behave with propriety at all times. As
we have very recently explained, a judge's official life can not simply
be detached or separated from his personal existence thus:

Being a subject of constant public scrutiny, a judge

should freely and willingly accept restrictions on
conduct that might be viewed as burdensome by the
ordinary citizen.

A judge should personify judicial integrity and

exemplify honest public service. The personal
behavior of a judge, both in the performance of official
duties and in private life should be above suspicion. 32

Verily, no position is more demanding as regards moral righteousness and uprightness of any
individual than a seat on the Bench. Within the hierarchy of courts, trial courts stand as an important
and visible symbol of government, especially considering that as opposed to appellate courts, trial
judges are those directly in contact with the parties, their counsel and the communities which the
Judiciary is bound to serve. Occupying as he does an exalted position in the administration of
justice, a judge must pay a high price for the honor bestowed upon him. Thus, the judge must
comport himself at all times in such manner that his conduct, official or otherwise, can bear the most
searching scrutiny of the public that looks up to him as the epitome of integrity and justice. 33 In
insulating the Bench from the unwarranted criticism, thus preserving our democratic way of life, it is
essential that judges, like Caesar's wife, should be above suspicion.

At the risk of sounding trite, the Court once again reminds all those who don judicial robes to maintain good moral
character and at all times observe irreproachable behavior so as not to outrage public decency. 34

Taking exception to the Court's finding that his alibi is a mere afterthought, respondent Judge further insists that his
defense "is authentic and not a mere concoction." 35

We remain unpersuaded. The merits of respondent Judge's defense as well as the testimonial declarations of the
witnesses he produced in support thereof have already been discussed at length in the challenged Decision and to
dwell further on them herein would be superfluous. Suffice it to state in this regard
that —

. . . It is settled that alibi is the weakest of all defenses. It cannot prevail over the positive
identification of the accused by the witnesses who have no ill motive to testify falsely. 36 Alibi
becomes less plausible when it is corroborated by relatives and friends who may not be impartial
witnesses. 37 More so when the corroborating testimonies are marred by discrepancies. 38

Respondent Judge finally brands the charge of obstruction of justice as "an extortion attempt gone awry" 39 bewailing
the Court's "expressed inability . . . to believe that "Regino would use his daughter Cecile for such an ignoble
purpose, especially if it will subject her to embarrassment and even stigma" saying that it "does not reflect [the]
reality of the times." 40

The foregoing protestations of respondent Judge ring hollow because the Court's disbelief that Regino would exploit
Cecile for disgraceful ends is anchored on concrete factual bases. In disposing of respondent Judge's allegation that
the obstruction of justice charge is a mere "concoction", the Court citing with approval excerpts of the Investigating
Justice's exhaustive findings, said:
. . . [t]he evidence on record shows that Panday and Cecile were complete strangers to each other
when they met in the afternoon of July 24, 1994. There is no morsel of evidence on record, and
Panday adduced none, to prove that Cecile had any ill or devious motive to concoct the charge
against Panday and tergiversate her testimony. Cecile was just a third year high school student. She
was made to believe by Panday that he was a Judge. Considering her youth and her lowly station in
life, she would not have dared concoct and fabricate her claim that it was Panday, a Judge no less,
who had sexual intercourse with her in the Tigaon Bodega unless it was true. It cannot be denied
that, despite intermittent assaults by media against the judiciary, the Judges, in the province, are still
looked upon with awe and respect by the citizenry by virtue of their lofty positions in government. We
cannot believe that Cecile could muster courage to implicate Panday, a Judge no less, unless her
claims were true. Absent any ill motive, the testimony of Cecile that it was Panday who had
intercourse with her must be accorded credence and full probative weight. 41

The same thing can be said of Regino, Cecile's father, and his testimony regarding Judge Panday's
attempt to settle the case by offering him the sum of one hundred fifty thousand pesos (P150,00.00).
Judge Panday alleges that Regino, along with Cecile and certain members of the Lagonoy PNP,
concocted the charges against him to extort money from him knowing that he is about to retire from
government service and receive his retirement benefits. This allegation is too far-fetched and
improbable. The Investigating Justice pointed out correctly that Regino is a mere passenger jeepney
driver while his daughter is just a third year high school student. It was not shown that they were
even aware that Judge Panday is due to retire from government service or that they know how much
he is to receive by way of retirement benefits.

. . . Moreover, Anita Panlilio's denial of her participation in brokering the agreement between Judge
Panday and Regino cannot prevail over Regino's positive and categorical testimony. In fine, Judge
Panday has failed to convincingly show any ill-motive on the part of Cecile and Regino to testify and
to impute to him such charges. 42

The presumption is that witnesses are not actuated by any improper motive absent any proof to the contrary and
that their testimonies must accordingly be met with considerable, if not conclusive, favor under the rules of
evidence 43 because it is not expected that said witnesses would prevaricate and cause the damnation of one who
brought them no harm or injury. 44

With regard to the statutory definition and requisites of the offense, Section 1 (a) of PD No. 1829 provides as
follows:

Sec. 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos or both, shall be imposed upon any person who knowingly or wilfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts:

(a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission
of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit,
intimidation force or threats; . . .

All told, the Court remains convinced that respondent Judge's penalty is commensurate to his misdeed.

WHEREFORE, in view of all the foregoing, respondent Judge Jose R. Panday's motion for reconsideration is hereby
DENIED for lack of merit.

SO ORDERED.
G.R. No. 129304 September 27, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AVA MA. VICTORIA CARIQUEZ y CRUZ, and LEEZEL FRANCO y SAMSON, accused-appellants.

DAVIDE, JR., C.J.:

This is an appeal from the decision 1

of 19 March 1997, of the Regional Trial Court of Pasig City, Branch 163, in Criminal Case No.
110410 convicting accused-appellants Ava Ma. Victoria Cariquez y Cruz (hereafter AVA) and Leezel Franco y Samson
(hereafter LEEZEL) of the crime of parricide and homicide, respectively.

In an Information 2 dated 30 May 1996, AVA and LEEZEL were initially charged with serious physical injuries under
Section 10, Article VI of R.A. No. 7610. 3 However, on 31 May 1996 the victim, Mariel Cariquez y Cruz (hereafter ETHEL)
died. On 30 August 1996 the information was amended to charge AVA and LEEZEL with the crime of parricide. The
Amended
Information 4 reads:

The undersigned State Prosecutor of the Department of Justice, accuses AVA MA. VICTORIA
CARIQUEZ Y CRUZ and LEEZEL FRANCO Y SAMSON of the crime of Parricide defined and penalized
under Article 246 of the Revised Penal Code, as amended by Sec. 5 of R.A. 7659 committed in the
manner herein narrated as follows:

That on or about the 27th day of May 1996, in the City of Mandaluyong, Philippines, a
place within the jurisdiction of this Honorable Court, accused AVA MA. VICTORIA Y
CARIQUEZ, being then the mother of a 2 1/2 years old child, MARIEL CARIQUEZ Y
CRUZ, conspiring and confederating together with Leezel Franco Y Samson, and
mutually helping and aiding one another, with intent to kill, evident premeditation, taking
advantage of superior strength and treachery, did then and there, willfully, unlawfully and
feloniously, beat and maul said MARIEL CARIQUEZ Y CRUZ in the different parts of her
body, thereby inflicting upon her mortal wounds which directly caused her death.

CONTRARY TO LAW.

The witnesses presented by the prosecution were Lilia Gojul, Michelle Torrente, Theresa Castillo, Dr. Antonio Vertido, Dr.
Jose Joey Bienvenida, SPO3 Adonis Bacarra, Dr. Arsenio Pascual, and Benilda Almario. Lilia Gojul is AVA's sister. The
relevant and material facts established by their testimonies are faithfully summarized in the Appellee's Brief, as follows:

Mariel Cariquez y Cruz, fondly called Ethel, was two and a-half years old when she and her mother, Ava
Cariquez, moved in sometime in January 1996 to No. 116 Royal Townhomes, San Rafael Mandaluyong
City. Ava's sister, Lilia C. Gojul moved in with them (TSN, October 16, 1996, pp. 5-6, 32). She slept with
the little girl in one of the two bedrooms on the house (TSN, Ibid., p. 12). Ava had a housemaid named
Elizabeth Patao, who also watched over Mariel or Ethel (TSN, October 16, 1996, pp. 6,8). At the time,
Ava had a live-in partner, Leezel Franco (TSN, October 16, 1996, pp. 5-6, 49). He was not the father of
Ethel, however (TSN, ibid., p. 51).

Ava's household was not at all peaceful because almost everyday, Ava and Leezel quarreled,
"nagbubugbugan" (TSN, October 16, 1996, pp. 9, 11; October 29, 1996, pp. 29, 40-41). Ava and Leezel
were then taking or using drugs (TSN, October 16, 1996, p. 39).

In the middle of March 1996, Lilia Gojul left Ava's household and went to live in her home at Urduja
Village, Novaliches, Quezon City (TSN, October 16, 1996, p. 6).

In the meantime, the little girl caught the attention of their neighbors as she was cute and friendly. While
the neighbors became fond of "Ethel," they however found Ava and Leezel aloof and snobbish (October
29, 1996, pp. 9, 30, 21).

On April 14, 1996, Lilia visited Ava and her niece at the Royal townhomes but she was shocked to see
Ethel's appearance; her hair was shaven, her face was full of contusions, her neck had faded cigarette
burns while her arms and legs had traces of pinching and maltreatment. She also had marks of "black-
eye" on both eyes. Lilia also noticed Ethel's knees with contusions due to prolonged kneeling. (TSN,
October 16, 1996, pp. 12, 13). When Lilia asked the little girl to identify who inflicted the injuries on her
body, Ethel tearfully pointed to Ava and Leezel (TSN, October 16, 1996, p. 14). Lilia confronted Ava about
her and Leezel's treatment of Ethel (Ibid., p. 13).

Neighbors were hearing the little girl crying everyday, morning, noon, evening, and even at 1:00 o'clock or
2:00 o'clock in the morning (TSN, October 29, 1996, p. 8, 29-30). Sometime in April, Michelle Torrente, an
occupant of Unit 114, was aghast to see her shaven, with bruises all over her body and wounds in her
arms and legs (TSN, ibid., pp. 10, 130. Ethel also had cigarette burns, and when Michelle asked what
happened, Ethel replied: "pinaso po ako." When Michelle further asked who burned her and caused her
bruises, Ethel said, "Papa ko po," referring to Leezel Franco (TSN, ibid., pp. 11-13).

The little girl's shaven head and bruises were also noticed by Theresa Castillo, an occupant of unit 115,
adjacent to Ava's residence. When she asked Ethel's "yaya" why this was done to the little girl, the "yaya"
answered, "parusa" (TSN, October 16, 1996, p. 150).

The next time that Lilia visited Ava and her daughter was on May 12, 1996. At the time, Ava's housemaid
has already left the household. On that occasion, Lilia observed that Ethel was sickly and had even more
contusions than the last time she saw her in April. Out of pity for the little girl, Lilia tried to persuade Ava
that she take custody of Ethel (TSN, October 16, 1996, p. 15). Ava agreed to her suggestion and wrote a
note where she passed on to Lilia Gojul the guardianship of Ethel Cariquez (TSN, ibid., pp. 16, 19; Exhibit
A). However, on May 14, 1996, Lilia had to leave Ava's household without bringing Ethel with her (TSN,
October 16, 1996, p. 21). Ethel cried silently when Lilia left (TSN, ibid., pp. 22, 36). Lilia heard nothing
from them after that.

On May 27, 1996, around 3:00 or 4:00 o'clock in the afternoon, Ethel was brought in an ambulance from
the Mandaluyong Medical Center to the Cardinal Santos Memorial Hospital at Greenhills, San Juan (TSN,
November 14, 1996, pp. 8; 29). At the time, she was unconscious and was assisted by an ambu bag,
unable to breathe on her own. Her body was limp and she had prominent bruises on the forehead and the
right cheek (TSN, ibid., pp. 8, 16).

Dr. Jose Joey Bienvenida attended to her and in the course of taking her medical history, he interviewed
the mother, Ava Cariquez. Ava at first told the doctor that it was her brother, the patient's uncle, who
mauled the child and inflicted upon her serious injuries. Ava later changed her story, saying that the little
girl actually fell from the stairs (TSN, ibid., pp. 9-10, 25-27).

A CT-scan was taken of the child and the results showed a combination of chronic and acute subdural
hematoma on the left frontotemporoparietal (front side and apex) convexity of the brain. Massive edema
and musk effect in the left cerebral hemisphere and right fronte-parietal lobe were noted. A fracture was
also noted on the left frontal bone (TSN, ibid., p. 11). Blood clot was found in almost the entire cerebral
hemisphere. He also found soft tissue injuries, i.e., hematoma and abrasions, in other parts of the body
(TSN, ibid., p. 42). Dr. Bienvenida noted that the injury on the head was a "confluent injury," which means
that it was sustained on different dates (TSN, ibid. p. 40); one portion of the injury was "resolving
hematoma" which was at least two (2) years old, while the more acute injury was sustained within 24
hours from his examination (TSN, ibid. p. 41). Ethel was thereafter confined at the Intensive Care Unit of
the hospital, attached to a respirator (TSN, ibid., p. 16). She was classified as a "brain-dead" patient
(Ibid., p. 18).

Ethel's condition however grew worse and she eventually died on May 31, 1996 at about 10:20 in the
morning. After her death, the life support system was removed (TSN, ibid., p. 18; Exhibit E). The cause of
death was "cardio respiratory arrest secondary to multiple organ system failure, severe massive crania-
cerebral trauma" (TSN, ibid. p. 23; Exhibit C-2).

Dr. Antonio Vertido, NBI Medico-Legal Officer, conducted an autopsy on the little girl's body (TSN,
November 7, 1996, p. 4). The doctor made the following significant findings: fracture linear, right middle
cranial fosse; abrasion, right forehead; contusion, right leg; contusion-abrasion left face; hematoma,
forehead right and hematoma, scalp, right fronto-parietal (Exhibit D). In his autopsy report, Dr. Vertido
concluded that the cause of death was Traumatic Head Injury, Severe (Exhibit D-2). 5

AVA and LEEZEL were the witnesses presented by the defense.

According to AVA, during their breakfast at about 7:30 a.m. on 27 1996, she talked with LEEZEL about their up-coming
concert on 1 June 1996 at Subic. Then, she went out of the house to make a telephone call. When she left the house, her
daughter ETHEL was eating while LEEZEL was playing the guitar. When she returned she saw ETHEL playing with the
food. She told ETHEL to hurry up as she was going with her to the office, but ETHEL stubbornly looked at her and
continued to play with her food. She again told ETHEL to hurry up and finish her food. ETHEL still said "No." To her
repeated order to do so, ETHEL also repeatedly said, "No." AVA then got a plastic belt and hit ETHEL with it on the
buttocks a number of times, which made ETHEL cry. Since ETHEL continued to be hard-headed, AVA held her on the
shoulder. ETHEL struggled and slipped AVA's hold, got out of balance, and fell. ETHEL hit the sofa and when she
bounced back her head hit the edge of the cemented stairs. AVA got shocked and noticed LEEZEL stop playing his guitar
and shout: "Ava yoong anak mo." AVA then held ETHEL and gave her mouth-to-mouth resuscitation. Seeing ETHEL's
serious condition, LEEZEL suggested to AVA to bring ETHEL to the hospital, which they did, at first to the Mandaluyong
City Hospital and because the hospital cannot provide the best medical care, to the Cardinal Santos Memorial Hospital,
where she was brought to and confined at the hospital's Intensive Care Unit (ICU). Early on the morning of 28 May 1996,
AVA went to the Mandaluyong Police Station to get her car and to find out the reason why her car was impounded. She
was not able to get the car. Instead, she was detained at about 8:00 p.m. of 28 May 1996. AVA came to know that the
police found drugs in her car, for which reason she was detained. 6 Three (3) days after her detention, Lilia Gojul, her
sister, went to jail and asked her to sign some papers and asked her permission to take off the respirator of ETHEL in the
hospital. She did not give her permission. 7
On cross-examination, AVA declared that the cigarette burns on ETHEL's body were caused by sprinkling oil while their
maid was cooking; LEEZEL had nothing to do with any of the child's bruises or injuries; when Lilia Gojul, her sister visited
her in jail, the former told her that she should point to LEEZEL as the one responsible for ETHEL's death, otherwise, she
will do something to her; and that she has no personal relation with LEEZEL. However, in her affidavit, 8 dated 1 June
1996, and in her reply-affidavit, 9 AVA pointed to LEEZEL as the one responsible for ETHEL's injuries, stating that when
she returned home after making a phone call from outside the house, she found LEEZEL hit ETHEL with the buckle of a
belt at the back and front of her head. She tried to stop him but he pushed her. As LEEZEL continued to hit ETHEL with
the belt, what she did was to get the antenna of the TV and hit LEEZEL with it at his hand causing him to release the
same. She then got hold of ETHEL but because LEEZEL pushed her she fell to the floor with her daughter. This was
repeated several times. When she noticed ETHEL was having difficulty in breathing, she ran to the comfort room in order
to give ETHEL a shower to revive her, at the same time applying mouth to mouth resuscitation to her. She went out of the
bathroom to bring ETHEL to the hospital. 10

In her reply-affidavit AVA declared that when she returned home after making a telephone call, she found LEEZEL hit
ETHEL with the buckle of his belt. That was not the first time that she saw him hit ETHEL; he used to hit her whenever he
is high on drugs and ETHEL was noisy playing. On those occasions LEEZEL use to hit AVA and they end up fighting
because AVA always tried to protect ETHEL from harm.

AVA tried to diminish the value of these admissions in her affidavit and reply-affidavit by testifying that she did not read
them before signing and she signed under a state of shock. 11

LEEZEL offered two versions for his defense. In his counter-affidavit 12 of 11 June 1996, he declared that during breakfast
in the morning of 27 May 1996, he and AVA talked about the band and their concert in Subic. Thereafter, AVA told him
that she was going to make a phone call outside of the house. Before leaving, she ordered ETHEL to hurry up with her
food because she was to go with AVA to the latter's office. However, when AVA returned, ETHEL had not finished eating.
AVA hit ETHEL very hard, whipped her with a belt, held her by the arms and pushed her, sending ETHEL to hit the corner
of the sofa and then to bounce, causing her head to hit the end of the cemented stairs and to fall to the floor. ETHEL was
on the verge of death. AVA was shocked. Seeing this, LEEZEL picked up ETHEL and brought her to the comfort room
where he poured water on her. Thereafter, he and AVA brought ETHEL to the hospital. 13

But, in his testimony in court LEEZEL declared that his statement in his counter-affidavit that AVA pushed ETHEL,
causing the latter to fall and to hit the cemented stairs was only narrated to him by AVA and that he never witnessed the
incident. 14 He further declared that he had nothing to do with ETHEL's injuries and the testimony of Lilia Gojul is not true.
Lilia had an ulterior motive against him because on one occasion he prevented Catherine, Lilia's daughter from entering
AVA's house and because of that Lilia, her husband and her sons Caesar and Julius kicked him and hit him with a chair.
Finally, LEEZEL claimed that he had no idea as to what happened to ETHEL; all that he saw was the child lying on the
floor, and he then helped AVA bring the child to the hospital. In the hospital, he was asked by the police to go with them to
the Complaints and Investigation Division of the Mandaluyong City Police, where he stayed for more than four hours.
Since the police conducted no formal investigation on him, he left for home. 15

In its decision 16 of 19 March 1997, the trial court found AVA and LEEZEL guilty of parricide and homicide, respectively. It
decreed as follows:

WHEREFORE, premises considered, this Court finds accused AVA Ma. Victoria Cariquez y Cruz and
Leezel Franco y Samson guilty beyond reasonable doubt as principal for the crime of Parricide and
homicide respectively and considering the mitigating circumstance that they did not intend to commit so
grave a wrong as that committed and there being no aggravating circumstances on record, imposes upon
—

a) Ava Ma. Victoria Cariquez the penalty of reclusion perpetua,

b) Leezel Franco the indeterminate penalty of eight (8) years and one (1)
day of prision mayor a minimum to fourteen (14) years eight (8) months
and one () day of reclusion temporal as maximum;

c) To pay the costs.

Any detention service rendered by the accused should be credited in their favor computed pursuant to
Batas Pambansa Blg. 85.

AVA and LEEZEL appealed to us from the decision.

In their Appellants' Brief, AVA and LEEZEL interpose this lone assignment of error:

THE LOWER COURT GRAVELY ERRED IN CONVICTING BOTH ACCUSED WITHOUT SUFFICIENT
EVIDENCE FOR CONVICTION.

In support thereof, they argue that the prosecution's principal witness Lilia Gojul, as well as the other witnesses never saw
how ETHEL sustained the injuries inflicted on her; Lilia never testified that during her stay in AVA's house the child was
the object of their quarrel; the prosecution's evidence is purely hearsay, conjectural and fails to show any conspiracy that
they maltreated and caused ETHEL's death; her death was purely accidental; only circumstantial evidence is on record
against them there was no evil motive on their part to kill ETHEL.
They characterized the report of ETHEL to Lilia Gojul as to the former's shaven head and injuries as hearsay and cannot
be considered an exception to the hearsay rule because it was not made on an impending death or with the thought of an
impending death and was related to Lilia many days before the incident.

LEEZEL further asserts that only AVA was formally charged, hence there is no case against him.

The trial court convicted AVA and LEEZEL on the basis of circumstantial evidence. Circumstantial evidence is sufficient to
convict provided the following requisites are present, namely: (1) there is more than one circumstance; (2) the facts from
which the inferences are derived from are proven; and (3) the combination of all the circumstances is such as to produce
a conviction beyond reasonable doubt. 17 The circumstantial evidence must constitute an unbroken chain of events so as
to lead to a fair and reasonable conclusion that points to the guilt of the accused. 18 In the Appellee's Brief, the Office of
the Solicitor General enumerates seven (7) circumstantial evidence which the trial court took into account and relied upon
as bases for its finding that AVA and LEEZEL, were criminally responsible for the death of ETHEL, to wit:

1. In 14 April 1996, prosecution principal witness, Lilia Gujol, saw Ethel shaven, with
many contusions on her face, black eyes, cigarette burns on her arms and neck, and
several marks of maltreatment on her legs and both knees as well as traces of pinching
all over her body. When asked who caused her those injuries, the 2 year old girl pointed
to her own mother, Ava, and her mother's live in partner, Leezel Franco;

2. When Lilia next saw Ethel on 12 May 1996, Ethel had even graver injuries and was
sickly. Again, Ethel pointed to appellants Ava and Leezel as the ones who caused her the
injuries.

3. Michelle Torrente, a resident of the unit adjacent to the townhouse unit occupied by
Ava Cariquez, Leezel Franco and Ethel Cariquez, testified that she used to hear Ethel
crying between 1:00 to 2:00 in the morning. She further testified that one day she saw
Ethel with bruises and cigarettes burns and when asked what happened to her, Ethel
replied, "pinaso po ako;" Ethel pointed to her Papa Leezel as the one who did it to her.

4. Theresa Castillo, another occupant of an adjacent unit, also testified that she often saw
Ethel bruised and crying and sometime in April, saw her head shaven. When she asked
the "yaya" why Ethel's hair was shaved, the "yaya" answered "parusa."

5. Dr. Jose Joey Bienvenida, the doctor who attended to Ethel at the Cardinal Santos
Memorial Hospital, opined that the injuries found on the head of Ethel were inflicted on
different dates.

6. Dr. Bienvenida further testified that in the course of taking the medical history of the
child, he interviewed the mother, Ava Cariquez, who gave conflicting accounts as to how
the child got injuries: while the mother initially said that her daughter was mauled by her
uncle (AVA's brother), she later changed her story by claiming that the child fell from the
stairs.

7. Dr. Vertido testified that the cause of death was traumatic Head Injury, Severe

Aside from the foregoing circumstantial evidence, the trial court also took into account AVA's affidavit (Exhibit "R"), reply-
affidavit (Exhibit "S"), and LEEZEL's counter-affidavit (Exhibit "T"), as well as the circumstances of the apprehension of
the two by authorities for illegal possession of "shabu" and AVA's judicial admission that ETHEL slipped from her hold, fell
and her head hit the cemented floor.

We are fully convinced from the evidence on record of the culpability of AVA and LEEZEL for ETHEL's maltreatment. The
testimony of Lilia Gojul, Michelle Torrente and Theresa Castillo ineluctably show that AVA and LEEZEL tormented
ETHEL. Where ETHEL dwelt was not a home; it was not even a house. It was hell. AVA and LEEZEL considered ETHEL
not as a child with human dignity and an object of love as children should be, but an unwanted object against whom they
could vent everything from frustrations to anger and hate. What Lilia saw on ETHEL was truly shocking — an innocent
child with shaven hair; with a face full of contusions; a neck with faded cigarettes burns; arms and legs with traces of
pinching and maltreatment; "black-eyed" eyes; and contused knees due to prolonged kneeling. 19 When Lilia asked the
little girl to identify who inflicted the injuries on her body, ETHEL tearfully pointed to AVA and LEEZEL. 20 Lilia confronted
AVA about her and LEEZEL's maltreatment of the child. 21

In April 1996 Michelle Torrente was aghast to see ETHEL's head shaven, with bruises all over her body and wounds in
her arms and legs, 22 as well as cigarette burns. When she asked what happened, ETHEL replied: "pinaso po ako." When
she further asked her who burned her and caused her bruises, ETHEL said, "Papa ko po," referring to LEEZEL. 23

Theresa Castillo also noticed ETHEL's shaven head and body bruises. When she asked ETHEL's yaya why this was done
to the child, the yaya answered, "parusa". 24

The declarations of Lilia, Michelle and Theresa as to what they observed on ETHEL were not hearsay. They saw her and
personally noticed the injuries and telltale marks of torture. While the answer of ETHEL as to who inflicted the injuries may
have been, indeed, hearsay because ETHEL could not be confronted on that, yet it was part of the res gestae and,
therefore, an exception to the hearsay rule pursuant to Section 42 of Rule 130 of the Rules of Court, which reads:
Sec. 42. Part of res gestae. Statements made by a person while a startling occurrence is taking place or
immediately prior or subsequently thereto with respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as part of the res gestae.

There are three requisites to the admission of evidence as constituting part of the res gestae. (1) that the principal act,
the res gestae, be a startling occurrence; 2) the statements were made before the declarant had time to contrive or
devise; and (3) that the statements must concern the occurrence in question and its immediately attending
circumstances. 25 In this case the startling occurrences were the tortures inflicted on ETHEL, who when asked who
caused them spontaneously pointed to AVA and LEEZEL. That some time may have lapsed between the infliction of the
injuries and the disclosure, it must however, be pointed out that there has been no uniformity as to the interval of time that
should separate the occurrence of the startling event from the making of the declarations. What is necessary is that the
injuries sustained by ETHEL prior to the incident on 27 May 1996 were inflicted by AVA and LEEZEL. These acts are
covered by and punished under R.A. No. 7610, under which they were originally prosecuted. However, the then
Information was amended to charge them with parricide under Article 246 of the Revised Penal Code. The evidence on
the prior incidents cannot legally justify a conviction for the physical injuries inflicted before 27 May 1996.

The issue then that must be resolved is who was or were responsible for the act on 27 May 1996, which caused or
resulted in the death of ETHEL? On this the prosecution failed to offer any direct evidence. The circumstantial evidence
the trial court appreciated related to acts or events which happened before 27 May 1996.

Yet, these prior acts are inseparable from that which happened on 27 May 1996. The latter was the coup de grace.
Fortunately, for the prosecution, AVA offered two versions. The first was that she offered at the witness stand in open
court, i.e., ETHEL's death was due to an accident. The second was narrated in her affidavit (Exhibit "R") and reply-
affidavit (Exhibit "S"), where she pointed to LEEZEL as the culprit. We cannot allow her to disown her affidavit and reply-
affidavit as the explanation given for that is very flimsy and incredible, and clearly concocted to exculpate LEEZEL and at
the same to absolve herself under a claim of accident. Her affidavit and reply-affidavit were prepared at her instance long
before she took the witness stand. In a manner of speaking they were given voluntarily and spontaneously long before the
prospect of a court trial became imminent and the dismissal of the cases against her was her goal. That she told the truth
in her affidavit and reply-affidavit cannot escape the verdict of rational minds.

AVA's story of "accident" cannot, likewise, work in her favor.

Accident is an exempting circumstance under Article 12 of the Revised Penal Code, In order that accident may exempt an
accused from criminal liability, it must be shown that the accused was performing a lawful act with due care; the resulting
injury was caused by mere accident; and there must be no fault or intent to cause the injury on the part of the accused. 26

The defense of accident shifted to AVA the burden of the evidence and it was incumbent upon them to prove that they
were exempt from criminal liability. It is at once evident from the story foisted to the trial court by AVA while she was on
the witness stand that the requisites of accident as an exempting circumstance were not proven. On the contrary, the
totality of her story proved beyond reasonable doubt that ETHEL was maltreated and pushed hard driving her head to the
cemented stairs and causing the injuries which were the proximate cause of her death.

We agree with the trial court's appreciation of conspiracy against AVA and LEEZEL. The rule is well settled that in
conspiracy the act of one is the act of all, and each of the conspirators is liable for the crimes committed by the other
conspirators. 27 Proof of conspiracy need not be direct but may be inferred from proof of facts and circumstances. 28 If it is
proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object each doing
a part so that their acts, though apparently independent were in fact connected, indicating a closeness of formal
association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to
concert means is proved. 29 The facts and circumstances proven in this case unerringly lead us to a conclusion that AVA
and LEEZEL conspired to maltreat, injure, inflict pain, torture ETHEL and they were united in that purpose and intention.
The totality of their evil deeds demonstrated beyond doubt their resolve to pursue with persistence their common
objective, which eventually resulted in the death of ETHEL. As amply demonstrated by the evidence, ETHEL's injuries,
particularly that on the head, in addition to those on the body, were sustained not only on the date of the fateful incident
but on dates before the day of the incident. Thus, Bienvenida testified that: he noted that the injury on the head was a
"confluent injury," which means that it was sustained on different dates; 30 one portion of the injury was "resolving
hematoma" which was at least (2) days old, while the more acute injury was sustained within 24 hours from his
examination. 31 Likewise, the result of the CT-Scan which was taken on the child showed a combination of chronic and
acute subdural hematoma on the left fronto-temporoparietal (front side and apex) convexity of the brain. Massive edema
and musk effect in the left cerebral hemisphere and right fronto-parietal lobe were noted. A fracture was also noted on the
left frontal bone. Blood clot was found in almost the entire cerebral hemisphere. Also found were soft tissue injuries, i.e.,
hematoma and abrasions, in other parts of the body. 32 In the autopsy conducted by Dr. Vertido of the NBI, the doctor
concluded as the cause of Ethel's death: "Traumatic Head Injury." 33
Indisputably, AVA committed the crime of parricide under Article 246 of the Revised Penal Code, as amended by R.A. No.
7659, which is punished by reclusion perpetua to death. Considering that no modifying circumstances were proven, then
pursuant to Article 63 of the Revised Penal Code, the lesser of the penalty, i.e., reclusion perpetua, was correctly imposed
by the trial court on AVA. LEEZEL was correctly held liable for the crime of homicide only as he was a stranger to the
victim, ETHEL. Previous to its amendment by R.A. 7610, the penalty for homicide under Article 249 of the Revised Penal
Code, was reclusion temporal. As amended by R.A. 7610, the penalty for homicide in cases where the victim is a child
below twelve (12) years of age is reclusion perpetua. The second paragraph of Section 10 of Article VI of R.A. 7610
provides, as follows:

For purposes of this Act, the penalty for the commission of acts punishable under Articles 248, 249, 262,
paragraph 2, and 263, paragraph 1 of Act No. 3815, as amended, the Revised Penal Code, for the crimes
of murder, homicide, other intentional multilation, and serious physical injuries, respectively, shall
be reclusion perpetua when the victim is under twelve (12) years of age . . . . (Emphasis supplied)

Accordingly, the penalty of reclusion perpetua should be imposed upon LEEZEL. His claim that he was not
charged in the amended information is absolutely wanting in basis. He was, although for parricide, but, he could
legally be convicted of homicide, which is necessarily included in that charged.

WHEREFORE, the decision, dated 19 March 1997 of the Regional Trial Court of Pasig City, Branch 163, in Criminal Case
No. 110410 finding accused-appellant Ava Ma. Victoria Cariquez y Cruz and Leezel Franco y Samson guilty beyond
reasonable doubt as principal of the crime of Parricide and Homicide, as defined and penalized under Article 246 and
Article 249 of the Revised Penal Code, respectively, and imposing, with respect to appellant Ava Cariquez, the penalty
of reclusion perpetua, is hereby AFFIRMED, but MODIFIED as to the penalty for Leezel Franco y Samson and as so
modified, he is hereby sentenced to suffer the penalty of reclusion perpetua. The decision is further MODIFIED by
directing accused-appellants Ava Carinquez and Leezel Franco y Samson to pay jointly and severally the heirs of ETHEL
Cariquez, except accused-appellant Ava Cariquez, the death indemnity in the amount of P50,000.00.

Costs against accused-appellants.

SO ORDERED.
G.R. No. 129670 February 1, 2000

MANOLET O. LAVIDES, petitioner,

vs.
HONORABLE COURT OF APPEALS; HON. ROSALINA L. LUNA PISON, Judge Presiding over Branch 107,
RTC, Quezon City; and PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:

Petitioner Manolet Lavides was arrested on April 3, 1997 for child abuse under R.A. No. 7610 (AN ACT PROVIDING
FOR STRONGER DETERRENCE AND SPECIAL PROTECTION AGAINST CHILD ABUSE, EXPLOITATION AND
DISCRIMINATION, PROVIDING PENALTIES FOR ITS VIOLATION, AND OTHER PURPOSES). His arrest was
made without a warrant as a result of an entrapment conducted by the police. It appears that on April 3, 1997, the
parents of complainant Lorelie San Miguel reported to the police that their daughter, then 16 years old, had been
contacted by petitioner for an assignation that night at petitioner's room at the Metropolitan Hotel in Diliman, Quezon
City. Apparently, this was not the first time the police received reports of petitioner's activities. An entrapment
operation was therefore set in motion. At around 8:20 in the evening of April 3, 1997, the police knocked at the door
of Room 308 of the Metropolitan Hotel where petitioner was staying. When petitioner opened the door, the police
saw him with Lorelie, who was wearing only a t-shirt and an underwear, whereupon they arrested him. Based on the
sworn statement of complainant and the affidavits of the arresting officers, which were submitted at the inquest, an
information for violation of Art. III, §5(b) of R.A. No. 7610 was filed on April 7, 1997 against petitioner in the Regional
Trial Court, Quezon City, where it was docketed as Criminal Case No. Q-97-70550. 1âwphi1.nêt

On April 10, 1997, petitioner filed an "Omnibus Motion (1) For Judicial Determination of Probable Cause; (2) For the
Immediate Release of the Accused Unlawfully Detained on an Unlawful Warrantless Arrest; and (3) In the Event of
Adverse Resolution of the Above Incident, Herein Accused be Allowed to Bail as a Matter of Right under the Law on
Which He is Charged.1

On April 29, 1997, nine more informations for child abuse were filed against petitioner by the same complainant,
Lorelie San Miguel, and by three other minor children, Mary Ann Tardesilla, Jennifer Catarman, and Annalyn
Talingting. The cases were docketed as Criminal Case Nos. Q-97-70866 to Q-97-70874. In all the cases, it was
alleged that, on various dates mentioned in the informations, petitioner had sexual intercourse with complainants
who had been "exploited in prostitution and . . . given money [by petitioner] as payment for the said [acts of] sexual
intercourse."

No bail was recommended. Nonetheless, petitioner filed separate applications for bail in the nine cases.

On May 16, 1997, the trial court issued an order resolving petitioner's Omnibus Motion, as follows:

WHEREFORE, IN VIEW OF THE FOREGOING, this Court finds that:

1. In Crim. Case No. Q-97-70550, there is probable cause to hold the accused under detention, his arrest
having been made in accordance with the Rules. He must therefore remain under detention until further
order of this Court;

2. The accused is entitled to bail in all the above-entitled case. He is hereby granted the right to post bail in
the amount of P80,000.00 for each case or a total of P800,000.00 for all the cases under the following
conditions:

a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He
shall and must always be present at the hearings of these cases;

b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and
forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in
absentia;

c) The hold-departure Order of this Court dated April 10, 1997 stands; and

d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to
immediately acquire jurisdiction over the accused;

3. Let these cases be set for arraignment on May 23, 1997 at 8:30 o'clock in the morning.2

On May 20, 1997, petitioner filed a motion to quash the informations against him, except those filed in Criminal Case
No. Q-97-70550 or Q-97-70866. Pending resolution of his motion, he asked the trial court to suspend the
arraignment scheduled on May 23, 1997.3 Then on May 22, 1997, he filed a motion in which he prayed that the
amounts of bail bonds be reduced to P40,000.00 for each case and that the same be done prior to his arraignment.4
On May 23, 1997, the trial court, in separate orders, denied petitioner's motions to reduce bail bonds, to quash the
informations, and to suspend arraignment. Accordingly, petitioner was arraigned during which he pleaded not guilty
to the charges against him and then ordered him released upon posting bail bonds in the total amount of
P800,000.00, subject to the conditions in the May 16, 1997 order and the "hold-departure" order of April 10, 1997.
The pre-trial conference was set on June 7, 1997.

On June 2, 1997, petitioner filed a petition for certiorari (CA-G.R. SP No. 44316) in the Court of Appeals, assailing
the trial court's order, dated May 16, 1997, and its two orders, dated May 23, 1997, denying his motion to quash and
maintaining the conditions set forth in its order of May 16, 1997, respectively.

While the case was pending in the Court of Appeals, two more informations were filed against petitioner, bringing
the total number of cases against him to 12, which were all consolidated.

On June 30, 1997, the Court of Appeals rendered its decision, the dispositive portion of which reads:

WHEREFORE, considering that the conditions imposed under Nos. 2-a) and 2-b),5 of the May 23 [should be
May 16], 1997 Order, are separable, and would not affect the cash bond which petitioner posted for his
provisional liberty, with the sole modification that those aforesaid conditions are hereby ANNULLED and
SET ASIDE, the May 16, May 23 and May 23, 1997 Orders are MAINTAINED in all other respects.6

The appellate court invalidated the first two conditions imposed in the May 16, 1997 order for the grant of bail to
petitioner but ruled that the issue concerning the validity of the condition making arraignment a prerequisite for the
approval of petitioner's bail bonds to be moot and academic. It noted "that petitioner has posted the cash bonds; that
when arraigned, represented by lawyers, he pleaded not guilty to each offense; and that he has already been
released from detention." The Court of Appeals thought that the aforesaid conditions in the May 16, 1997 order were
contrary to Art. III, §14(2) of the Constitution which provides that "[a]fter arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is
unjustifiable."

With respect to the denial of petitioner's motion to quash the informations against him, the appellate court held that
petitioner could not question the same in a petition for certiorari before it, but what he must do was to go to trial and
to reiterate the grounds of his motion to quash on appeal should the decision be adverse to him.

Hence this petition. Petitioner contends that the Court of Appeals erred7 —

1. In ruling that the condition imposed by respondent Judge that the approval of petitioner's bail bonds "shall
be made only after his arraignment" is of no moment and has been rendered moot and academic by the fact
that he had already posted the bail bonds and had pleaded not guilty to all the offenses;

2. In not resolving the submission that the arraignment was void not only because it was made under
compelling circumstance which left petitioner no option to question the respondent Judge's arbitrary action
but also because it emanated from a void Order;

3. In ruling that the denial of petitioner's motion to quash may not be impugned in a petition for certiorari; and

4. In not resolving the legal issue of whether or not petitioner may be validly charged for violation of Section
5(b) of RA No. 7610 under several informations corresponding to the number of alleged acts of child abuse
allegedly committed against each private complainant by the petitioner.

We will deal with each of these contentions although not in the order in which they are stated by petitioner.

First. As already stated, the trial court's order, dated May 16, 1997, imposed four conditions for the grant of bail to
petitioner:

a) The accused shall not be entitled to a waiver of appearance during the trial of these cases. He shall and
must always be present at the hearings of these cases;

b) In the event that he shall not be able to do so, his bail bonds shall be automatically cancelled and
forfeited, warrants for his arrest shall be immediately issued and the cases shall proceed to trial in absentia;

c) The hold-departure Order of this Court dated April 10, 1997 stands; and

d) Approval of the bail bonds shall be made only after the arraignment to enable this Court to immediately
acquire jurisdiction over the accused;

The Court of Appeals declared conditions (a) and (b) invalid but declined to pass upon the validity of condition (d) on
the ground that the issue had become moot and academic. Petitioner takes issue with the Court of Appeals with
respect to its treatment of condition (d) of the May 16, 1997 order of the trial court which makes petitioner's
arraignment a prerequisite to the approval of his bail bonds. His contention is that this condition is void and that his
arraignment was also invalid because it was held pursuant to such invalid condition.

We agree with petitioner that the appellate court should have determined the validity of the conditions imposed in
the trial court's order of May 16, 1997 for the grant of bail because petitioner's contention is that his arraignment was
held in pursuance of these conditions for bail.

In requiring that petitioner be first arraigned before he could be granted bail, the trial court apprehended that if
petitioner were released on bail he could, by being absent, prevent his early arraignment and thereby delay his trial
until the complainants got tired and lost interest in their cases. Hence, to ensure his presence at the arraignment,
approval of petitioner's bail bonds should be deferred until he could be arraigned. After that, even if petitioner does
not appear, trial can proceed as long as he is notified of the date of hearing and his failure to appear is unjustified,
since under Art. III, §14(2) of the Constitution, trial in absentia is authorized. This seems to be the theory of the trial
court in its May 16, 1997 order conditioning the grant of bail to petitioner on his arraignment.

This theory is mistaken. In the first place, as the trial court itself acknowledged, in cases where it is authorized, bail
should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. For if
the information is quashed and the case is dismissed, there would then be no need for the arraignment of the
accused. In the second place, the trial court could ensure the presence of petitioner at the arraignment precisely by
granting bail and ordering his presence at any stage of the proceedings, such as arraignment. Under Rule 114,
§2(b) of the Rules on Criminal Procedure, one of the conditions of bail is that "the accused shall appear before the
proper court whenever so required by the court or these Rules," while under Rule 116, §1(b) the presence of the
accused at the arraignment is required.

On the other hand, to condition the grant of bail to an accused on his arraignment would be to place him in a
position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because
until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to
quash so that he can be arraigned at once and thereafter be released on bail. These scenarios certainly undermine
the accused's constitutional right not to be put on trial except upon valid complaint or information sufficient to charge
him with a crime and his right to bail.8

It is the condition in the May 16, 1997 order of the trial court that "approval of the bail bonds shall be made only after
arraignment," which the Court of Appeals should instead have declared void. The condition imposed in the trial
court's order of May 16, 1997 that the accused cannot waive his appearance at the trial but that he must be present
at the hearings of the case is valid and is in accordance with Rule 114. For another condition of bail under Rule 114,
§2(c) is that "The failure of the accused to appear at the trial without justification despite due notice to him or his
bondsman shall be deemed an express waiver of his right to be present on the date specified in the notice. In such
case, trial shall proceed in absentia."

Art. III, §14(2) of the Constitution authorizing trials in absentia allows the accused to be absent at the trial but not at
certain stages of the proceedings, to wit: (a) at arraignment and plea, whether of innocence or of guilt,9 (b) during
trial whenever necessary for identification purposes,10 and (c) at the promulgation of sentence, unless it is for a light
offense, in which case the accused may appear by counsel or representative.11 At such stages of the proceedings,
his presence is required and cannot be waived. As pointed out in Borja v. Mendoza,12 in an opinion by Justice, later
Chief Justice, Enrique Fernando, there can be no trial in absentia unless the accused has been arraigned.

Undoubtedly, the trial court knew this. Petitioner could delay the proceedings by absenting himself from the
arraignment. But once he is arraigned, trial could proceed even in his absence. So it thought that to ensure
petitioner's presence at the arraignment, petitioner should be denied bail in the meantime. The fly in the ointment,
however, is that such court strategy violates petitioner's constitutional rights.

Second. Although this condition is invalid, it does not follow that the arraignment of petitioner on May 23, 1997 was
also invalid. Contrary to petitioner's contention, the arraignment did not emanate from the invalid condition that
"approval of the bail bonds shall be made only after the arraignment." Even without such a condition, the
arraignment of petitioner could not be omitted. In sum, although the condition for the grant of bail to petitioner is
invalid, his arraignment and the subsequent proceedings against him are valid.

Third. Petitioner concedes that the rule is that the remedy of an accused whose motion to quash is denied is not to
file a petition for certiorari but to proceed to trial without prejudice to his right to reiterate the grounds invoked in his
motion to quash during trial on the merits or on appeal if an adverse judgment is rendered against him. However, he
argues that this case should be treated as an exception. He contends that the Court of Appeals should not have
evaded the issue of whether he should be charged under several informations corresponding to the number of acts
of child abuse allegedly committed by him against each of the complainants.

In Tano v. Salvador,13 the Court, while holding that certiorari will not lie from a denial of a motion to quash,
nevertheless recognized that there may be cases where there are special circumstances clearly demonstrating the
inadequacy of an appeal. In such cases, the accused may resort to the appellate court to raise the issue decided
against him. This is such a case. Whether petitioner is liable for just one crime regardless of the number of sexual
acts allegedly committed by him and the number of children with whom he had sexual intercourse, or whether each
act of intercourse constitutes one crime is a question that bears on the presentation of evidence by either party. It is
important to petitioner as well as to the prosecution how many crimes there are. For instance, if there is only one
offense of sexual abuse regardless of the number of children involved, it will not matter much to the prosecution
whether it is able to present only one of the complainants. On the other hand, if each act of sexual intercourse with a
child constitutes a separate offense, it will matter whether the other children are presented during the trial.

The issue then should have been decided by the Court of Appeals. However, instead of remanding this case to the
appellate court for a determination of this issue, we will decide the issue now so that the trial in the court below can
proceed without further delay.

Petitioner's contention is that the 12 informations filed against him allege only one offense of child abuse, regardless
of the number of alleged victims (four) and the number of acts of sexual intercourse committed with them (twelve).
He argues that the act of sexual intercourse is only a means of committing the offense so that the acts of sexual
intercourse/lasciviousness with minors attributed to him should not be subject of separate informations. He cites the
affidavits of the alleged victims which show that their involvement with him constitutes an "unbroken chain of
events," i.e., the first victim was the one who introduced the second to petitioner and so on. Petitioner says that child
abuse is similar to the crime of large-scale illegal recruitment where there is only a single offense regardless of the
number of workers illegally recruited on different occasions. In the alternative, he contends that, at the most, only
four informations, corresponding to the number of alleged child victims, can be filed against him.

Art. III, §5 of R.A. No. 7160 under which petitioner is being prosecuted, provides:

Sec. 5 Child Prostitution and Other Sexual Abuse. — Children, whether male or female, who for money,
profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge
in sexual intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other
sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the
following:

xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution
or subjected to other sexual abuse.

The elements of the offense are as follows: (1) the accused commits the act of sexual intercourse or lascivious
conduct; (2) that said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and
(3) the child,14 whether male or female, is or is deemed under 18 years of age. Exploitation in prostitution or other
sexual abuse occurs when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any
other consideration; or (b) under the coercion or influence of any adult, syndicate, or group.

Each incident of sexual intercourse and lascivious act with a child under the circumstances mentioned in Air. III, §5
of R.A. No. 7160 is thus a separate and distinct offense. The offense is similar to rape or act of lasciviousness under
the Revised Penal Code in which each act of rape or lascivious conduct should be the subject of a separate
information. This conclusion is confirmed by Art. III, §5(b) of R.A. No. 7160, which provides:

[t]hat when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article
335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape
or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim
is under twelve (12) years of age shall be reclusion temporal in its medium period;

WHEREFORE, the decision of the Court of Appeals is SET ASIDE and another one is RENDERED declaring the
orders dated May 16, 1997 and May 23, 1997 of the Regional Trial Court, Branch 107, Quezon City to be valid, with
the exception of condition (d) in the second paragraph of the order of May 16, 1997 (making arraignment a
prerequisite to the grant of bail to petitioner), which is hereby declared void.
1âw phi 1.nêt

SO ORDERED.
G.R. No. 132295 May 31, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANDRES LUBONG y PAJE, accused-appellant.

GONZAGA-REYES, J.:

Accused-appellant Andres Lubong y Paje was charged with Rape under Article 335, paragraph 3 of the Revised
Penal Code and Sexual Abuse under Article III, Section 5(b) of Republic Act 7610, 1 before the Regional Trial Court,
Third Judicial Region, Olongapo City, Branch 72 2 in the following two (2) separate Informations:

In Crim. Case No. 349-95, for Rape:

The undersigned Provincial Prosecutor and Special Prosecutor of Violation of Republic Act 7610 and
other related laws on Child Abuse, upon sworn complaint filed by the offended party, accuses
Andres Lubong y Paje of the crime of Rape, defined and penalized under Article 335, Par. 3 of the
Revised Penal Code, committed as follows:

That on or about the 23rd day of May, 1995 at around 7:00 o'clock in the evening, at
Brgy. La Paz, in the (M)unicipality of San Marcelino, Province of Zambales,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, by
means of force, intimidation and threats, did then and there willfully, unlawfully and
feloniously have carnal knowledge of said Jennifer Mangcol, a girl of 17 years old,
against her will and consent, to the damage and prejudice of the latter.

CONTRARY TO LAW. 3

In Crim. Case No. 350-95, for Sexual Abuse:

The undersigned Provincial Prosecutor and Special Prosecutor of Violation of Republic Act 7610 and
other related laws on Child Abuse, upon sworn complaint filed by the offended party, accuses
Andres Lubong y Paje of Sexual Abuse, defined and penalized under Section 5(b), Article III of
Republic Act 7610 (Special Protection of Children against Child Abuse, Exploitation and
Discrimination Act), committed as follows:

That on or about the 23rd day of May, 1995 at around 7:00 o'clock in the evening at Brgy. La Paz, in
the Municipality of San Marcelino, Province of Zambales, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, with lewd design, and by means or employment of
persuasion, inducement, enticement, coercion, intimidation and other consideration, did then and
there willfully, unlawfully and feloniously commit the act of sexual intercourse with Jennifer Mangcol,
a minor of 17 years old, against her will and consent, to the damage and prejudice of the latter.

CONTRARY TO LAW. 4

When arraigned, the accused pleaded not guilty to the commission of the crimes charged. Joint trial of the
two cases ensued.

The prosecution presented the complainant Jennifer Mangcol and three other witnesses, namely: Elizabeth "Auntie
Beth" Ortiz, a missionary who runs the Southern Baptist Parish Family Center based in Zambales which, among
other things, shelters and takes care of abandoned children, one of whom is herein complainant; Dr. Laila Patricio,
who examined complainant on September 25, 1995 and found the "hymen with multiple healed lacerations"; 5 and
Dra. Aida Muncada, Physician-Psychiatrist of the National Center for Mental Health who also examined complainant
and concluded that "she was seventeen (17) but he level of mental capacity is like that of a six (6) year old." 6

The Office of the Solicitor General summarized the evidence for the prosecution as follows:

The offended party, Jennifer Mangcol, a mental retardate, testified that she was then 18 years old
per information from her Auntie Beth. She went to school and after Grade 1 stopped schooling a
long time ago. She knew how to write her name only and did not know how to read. She did not
know how to count and did not know how much is one plus one (1 + 1). It being obvious from the
answers she gave to a lot of questions propounded to her that she was suffering from mental
retardation, the prosecution was allowed by the court to conduct the examination of complaining
witness by leading questions (t.s.n., February 5, 1996, pp. 3-12).
Complaining witness declared that she was a resident of Calbayog City in the Visayas before May
23, 1995. She was taken by her Auntie Beth to Manila where the latter was then staying and later
brought to Barangay La Paz, San Marcelino, Zambales. At the latter place, complaining witness and
her Auntie Beth lived in a house together with somebody whom complaining witness called "Kuya
John" and regarded as a brother although not really such (t.s.n., February 5, 1996, pp. 12-15).

While staying at the house in La Paz, San Marcelino, Zambales, an unusual incident happened to
complaining witness on May 23, 1995 when appellant entered the house to fetch water therefrom.
Appellant introduced himself to complaining witness saying "I am Lubong" and told her not to be
afraid of him. After fetching water, appellant told complaining witness that he will come back and did
so. Appellant waited at the door for complaining witness who was then out to fetch water and
entered the house when she was already inside the same. Appellant asked complaining witness
where her room was located but she did not answer said query. Appellant went upstairs after
complaining witness had gone thereat ahead of the former. Appellant took off his clothes consisting
of a T-shirt and shorts. Appellant himself then removed the clothes of complaining witness who
resisted, telling appellant not to touch her because her brother may arrive. Appellant just told
complaining witness not to mind, continued undressing her and thereafter made her lay down then
placed himself on the stomach or on top of complaining witness and inserted his penis into her sex
organ for a long time, as a consequence of which she felt pain. Appellant also did the same thing to
complaining witness while they were already in the latter's room. Appellant also inserted his penis
into the mouth of complaining witness which made the latter feel awful and "was about to vomit"
(t.s.n., February 5, 1996, pp. 15-26).

Physician-Psychiatrist Dr. Aida L. Muncada, a resident physician of the National Center for Mental
Health, declared that she is involved in the evaluation and management of psychiatric patients, had
pursued a fellowship in child and adolescent psychiatry for two (2) years at the UP-PGH and trained
with the mental disorders of both children and adolescents, including retarded adolescents. She had
written papers about "Drugs and Acute Psychotic Reaction" and specifically with regard to sexually
abused children, she had co-authored "Perception of Sexually abused Among Seven to Fourteen
Years Old Street Children." She had also written "Psycho Social Profile of Fourty Four Five to
Sixteen Years Old As Sexually Abused Children in Metro Manila" and had presented said papers in
major psychiatric conventions (t.s.n., March 25, 1996, pp. 2-8).

Dr. Muncada, who is also a consultant of the DSWD Lingap Center, examined the offended party.
Jennifer Mangcol, who was brought thereat by the latter's guardian Elizabeth Ortiz who told her that
Mangcol was raped by appellant sometime in May, 1995. Dr. Muncada prepared a report of her
examination (Exh. "C") wherein she concluded thus:

Based on above history and mental status examination, patient Jennifer has been
abused sexually. A diagnosis of V Code V 61.21 by Diagnostic and Statistical Manual
for Mental Disorder is being given which is Sexual Abuse of Child.

A concommitant diagnosis of Mental Retardation is also being made. The IQ of 35

falls under Moderate level. Patient would need supervision guide under mild social
stress.

Dr. Muncada further stressed upon query of the court or presiding judge thereof that Mangcol "was
seventeen (17) but her level of mental capacity is like that of six (6) years old" (t.s.n., March 25,
1996, pp. 2-13).

Dr. Laila Patricio, a resident physician of the James L. Gordon Medical Center at Olongapo City,
examined the offended party, Jennifer Mangcol, who was accompanied by Rosario Sibricos of the
Lingap Center, on September 25, 1995. Because she had difficulty communicating with Jennifer who
is a retardate, Dr. Patricio just talked with Rosario Sinbricos concerning Jennifer. Upon examination
of Jennifer at the hospital's delivery room, Dr. Patricio found out that her hymen has multiple healed
lacerations which could have been caused by a foreign object inserted into her vagina, such as a
penis, a finger, a vibrator or other object. She was able to insert her two fingers easily into the vagina
of Jennifer. If Jennifer had a sexual intercourse with a man, the same could have resulted to said
multiple healed lacerations. Dr. Patricio prepared the corresponding medico legal certificate (Exh.
"D") regarding her examination of Jennifer Mangcol (t.s.n., September 2, 1996, pp. 2-11). 7

On the other hand, the defense presented only appellant himself as witness who relied on denial and alibi. He
testified that on May 23, 1995, he was working as a mason in the construction site of Mrs. Magalino where he
started working at 7 o'clock in the morning up to 5 o'clock in the afternoon. After working he went home to his house
at San Isidro, San Marcelino, Zambales and arrived thereat at 5:15 p.m. He cooked his food because he was living
alone in the house. The following day, he reported for work at 7 o'clock in the morning. That afternoon, he was
arrested and brought to the police station where the complainant accompanied by her guardian Elizabeth Ortiz and
Kuya John was waiting for him. 8 In the appellant's brief, accused-appellant summed up his defense that "on the
alleged date in question, appellant was hard at work as a mason in the Mangalino (sic) residence." 9 No one was
presented to corroborate his story.
The court a quo found the accused guilty of Rape under the Revised Penal Code and acquitted him of "Sexual
Abuse" under Article III, Section 5(b) of Republic Act 7610, viz:

WHEREFORE, (THE) Court finds the accused Andres Lubong y Paje guilty beyond reasonable
doubt of the crime of rape in Crim. Case No. 349-85 and is hereby sentenced to RECLUSION
PERPETUA and to pay moral damages in the amount of One Hundred Thousand (P100,000.00)
Pesos, and to pay the cost.

In Crim. Case No. 350-95, the accused is hereby ACQUITTED of the crime charged.

SO ORDERED. 10

The appellant submits the following assigned errors in his brief:

THE LOWER COURT ERRED IN CONVICTING APPELLANT ON DOUBTFUL AND HEARSAY

EVIDENCE.

II

THE COURT A QUO DISREGARDED APPELLANT'S DEFENSE OF ALIBI WHEN THE IDENTITY
OF SUSPECT IS DOUBTFUL.

III

THE TRIAL COURT MISUNDERSTOOD, MISAPPLIED, OVERLOOKED MATERIAL FACTS OF

SUBSTANCE WHICH IF CONSIDERED WILL EXONERATE APPELLANT. 11

which he jointly discussed, raising the following points:

1. The first time complainants saw appellant was in the police station when he was
brought in for questioning; that there was never a police line-up to ascertain the
identity of the culprit; and that he is merely a look-alike;

2. Considering the mental age of the complainant to be that of a six year old, she
could be easily swayed by suggestion of the police officers who wanted a "fall guy" or
"scapegoat" to solve the case to ensure reward or promotion;

3. The manner by which appellant escaped from the locus criminis is highly
improbable considering that the house where the alleged rape occurred is an old pre-
war edifice where the ceiling in the second floor is inaccessible and cannot be scaled
for egress purposes; that it is a rarity that this house is empty; that the branches of
the tree closest to the ceiling are not big enough to hold the weight of a well-built
man such as appellant; and that the size and built of appellant would not allow him to
crawl out of the hole in the fence as his means of escape.

4. The thrust of the court a quo's conviction is based on circumstantial evidence, the
requisites of which have not been met. 12

In sum, appellant questions (1) his improper identification as the culprit; (2) the sufficiency of the prosecution's
evidence; and challenges the court a quo's Decision which he claims was based entirely on circumstantial evidence.

The appeal is without merit. A close and detailed examination of the entire record of the case at bar impels us to
affirm. We shall no longer delve into the charge of Sexual Abuse under Republic Act 7610 on account of appellant's
acquittal thereof.
1âwphi1.nêt

We do not agree that there was improper identification of appellant as the culprit. Appellant's claim that Jennifer was
merely swayed by the police or his identification was through improper suggestion by the police is without basis.
True, appellant was never identified in a police line-up, however, in People vs. Salguero. 13 , the Court held that
"(T)here is no law requiring a police line-up as essential to proper identification. Thus, even if there was no police
line-up, there could still be proper identification as long as such identification was not suggested to the witnesses by
the police." The records are bereft of any indication that the identification of appellant by Jennifer was suggested by
the police. Of paramount importance in dispelling any doubts as to the proper identification of appellant is his
positive identification in open court by the complainant. Jennifer identified and pointed to appellant as her rapist in
court. We are satisfied that her testimony was by itself alone, sufficient identification of her rapist, quoted as follows:
Q: Now, while you Q: Whom are you
were staying in that referring to?
house of your auntie
Beth at Barangay La A: (Witness looking at
Paz, San Marcelino, the direction of the
Zambales do you accused Andres
recall of any unusual Lubong.)
incident that happened
to you? COURT

ATTY. ALINEA Q: Would you like the

Court to continue with
No, sir. Hindi. the hearing by asking
Tumatango siya. you another question?

WITNESS A: Yes, sir.

There was, sir. COURT

PROSECUTOR You ask another

FLORESTA question.

Q: What was that PROSECUTOR

unusual incident that FLORESTA
happened to your
person? Q: Now, if that person
whom you said you are
A: (Witness is looking afraid of is inside the
at the accused.) courtroom will you be
able to point him out to
COURT the Court?

Q: May nangyari ba sa A: Yes, sir.

iyo?
Q: Please point him
(Was there something out to the Court.
that happened to you?)
A: (Witness pointing
A: Yes, sir. the accused Andres
Lubong, Jr.)
Q: Are you afraid?
Q: Why are you afraid
PROSECUTOR of Andres Lubong?
FLORESTA:
A: "Baka makatakas
I notice that siya."
"napapahiya siya."
(He might be able to
WITNESS escape.) 14

A: Yes, sir. (Answer to After identifying her assailant, she narrated her ordeal
the question of the in the hands of the appellant in a plain and
Honorable Court.) straightforward manner, as follows:

COURT Q: Was there anything

wrong committed
Q: Why are you afraid? against you by Andres
Natatakot? Lubong?

A: Yes, sir. ATTY. ALINEA

PROSECUTOR Earlier we agreed for

FLORESTA the Court to determine
whether you can be
allowed to ask leading
Q: Why are you afraid?
questions. But we
have to . . .
A: I saw him.
COURT He introduced himself
to me first.
At this stage Court
perception is that the Q: And how did
witness is in fact Lubong introduce
mentally retarded. The himself to you?
prosecution may ask
leading question now. A: He told me, "I am
Lubong".
PROSECUTOR
FLORESTA Q: And what else did
he tell you if he told
Yes, sir. you anything?

COURT A: He told me not to be

afraid of him.
You call the auntie so
that she will not be Q: And what was your
afraid. reply to him?

PROSECUTOR A: I did not answer, sir.

FLORESTA
Q: Then after that what
At this stage the auntie did Lubong do?
was called in by the
Court — now seated at A: He fetch water, sir.
the front seat. And the
auntie is holding her Q: And after he
head as a sign of fetched the water did
encouragement to the he say anything to
victim. you?

COURT A: Yes, sir.

Continue now. Q: What did he tell you

after he fetched water?
PROSECUTOR
FLORESTA A: He told me that he
will come back.
Yes, sir.
Q: And did he come
Q: Please tell this back after he fetched
Honorable Court what water?
did Lubong do to you
while you were staying A: Yes, sir.
at Barangay La Paz,
San Marcelino,
Q: And where were
Zambales in the house
you at that time when
of your Auntie Beth?
he came back?
A: He entered the
A: He was fetching
house.
water. I was about to
fetch water.
Q: Now, when . . . after
he entered the house
Q: And what did
do you know what did
Lubong did with you
Lubong do, if he did,
after he came back?
anything?
A: He waited for me at
A: He was about to
the door, sir.
fetch water.
Q: And was he able to
Q: And was he able to
wait for you at the
fetch water?
door?
A: Yes, sir.
A: Yes, sir.
Q: And when you Q: How did you resist?
reached at the door
what happened? A: I told him not to
touch me because my
A: He entered, sir. brother may arrive.

Q: And what about Q: And when you said

you? that your brother will
arrive, to Lubong, what
A: I was also inside. did Lubong do?

Q: And when you and A: He told me not to

Lubong were already mind.
inside what did Lubong
do if he did anything? Q: So what happened
next?
A: He was asking me
where is my room. A: He still continued.

Q: And what did you Q: Continued what?

say?
A: (Witness
A: I did not answer, sir. demonstrating.)

Q: When you did not ATTY. ALINEA

answer what did
Lubong do if he did We go on record that
anything? witness gestured a
gyration of push and
A: He went upstairs, pull type of body
sir. action.

Q: What about you? Q: And where was

Lubong at the time in
A: I went ahead of relation to you when
Lubong. he was making
movement of his body.
Q: When you and
Lubong were already A: At our sala, sir.
upstairs what
happened? Q: Do you understand
my question?
A: He took off his
clothes. A: Yes, sir.

Q: And what was he Q: You said that

wearing at the time? Andres Lubong was
making movement of
A: T-shirt. his body while you
were already lying
Q: What about on the down, he removed
waist what was he your clothes, is that
wearing? correct?

A: Short. A: Yes, sir.

Q: And after he He was in the sala, sir.

removed his clothes
what happened? COURT

A: He himself removed Q: Did he make you

my clothes. lay down?

Q: You did not resist? A: Yes, sir.

A: I resisted. Lumaban PROSECUTOR

ako. FLORESTA
Q: Where? A: He did that to me
twice in my room.
A: On our floor.
Q: What did he try to
Q: And what did he do do to you?
with you after you were
lying down? A: The same.

A: He lay down on my Q: Did he make you to

stomach. do other thing?

COURT A: Yes, sir.

Q: He was on top of Q: What is that?

you?
A: He was inserting his
A: Yes, sir. penis to my mouth.

Q: Did he make any Q: Was he able to do

movement? that?

A: Yes, sir. A: Yes, sir.

PROSECUTOR Q: What was your

FLORESTA reaction to what he
was doing to you?
Q: He was already
naked? A: I was about to
vomit, sir. 15
A: Yes, sir.
On re-direct examination, Jennifer identified again her
Q: What did he do with assailant, as follows:
his penis?
FISCAL
A: He inserted his
penis to me. Q: Ms. Mangcol you
stated that you were
Q: Was he able to investigated by the
insert it to you? police, what did you
tell to the police upon
A: Yes, sir. your investigation?

COURT A: When I was asked

what happened to me,
I told them that I was
Q: What did you feel?
raped by Lubong sir.
A: I felt pain, sir.
Q: If he is inside the
court room will you be
Q: How long did he do able to point him out to
that to you? the court?

A: Very long, sir. (Witness pointing to a

certain person who
Q: What happened to gave his name as
him while doing that? Andres Lubong). 16

The trial court found the testimony of Jennifer credible although she was a retardate with the mental capacity of a six
year old and thus based appellant's conviction almost entirely on the credibility of Jennifer's testimony. The trial
court ruled in part: ". . . . Although there is only one direct testimony as to how the rape was committed, it is a well
settled rule that the testimony of a single witness with positive identification of the accused is sufficient to support a
conviction (People vs. Alder, 184 SCRA). The Court finds the testimony of the complainant Jennifer Mangcol
positive because aside from being a minor, her mental capacity is that of a six (6) years old, and she has no motive
to falsify the truth (People vs. Gefere, 181 SCRA). There is no showing of any motive on the part of the complainant
to pose liability to the person of the accused (Mamaril vs. Contrato, Jr., 193 SCRA 782). . . ." 17

Time and again, this Court has said that we will not interfere with the judgment of the trial court in determining the
credibility of witnesses, unless there appears in the record some fact or circumstance of weight and influence which
the trial court overlooked, misunderstood or misappreciated and which, if properly considered, would have altered
the results of the case. 18 The reason for this is that the trial judge enjoys the peculiar advantage of observing directly
and at first-hand the witnesses' deportment and manner of testifying and is, therefore, in a better position to form
accurate impressions and conclusions on the basis thereof. 19 In any event, our perusal of the records of the case,
including the transcript of stenographic notes, convinces us that the court a quo correctly appreciated the victim's
testimony.

We note that while appellant challenges the credibility of Jennifer, he does not question the latter's competency to
be a witness and testify in court. The defense accepted the representation in court of the victim's mental retardation
and did not object to her competency to testify. Indeed, we find no reason to doubt her competency. A mental
retardate is not, by reason of such handicap alone, disqualified from testifying in court. 20 He or she can be a witness,
depending on his or her ability to relate what he or she knows. 21 If the testimony of a mental retardate is coherent,
the same is admissible in court. 22 Despite her mental retardation, we are convinced that Jennifer adequately showed
she could convey her ideas by words and could give sufficiently intelligent answers to the questions propounded by
the court and her counsel.

Appellant harps on the impossibility of his escaping from the room on the second floor of the house where the rape
was committed by passing through a hole between the wall and the roof; climbing down a tree; and exiting through a
whole in the fence. We are not persuaded by this argument to the extent of discrediting the declaration of Jennifer.
This circumstance is not vital or significant and cannot affect Jennifer's credibility. This relates to an incident which
does not detract from the main thrust of complainant's testimony that she was raped by appellant. Moreover, this
manner of escaping was part of the testimony of Elizabeth Ortiz as supposedly related by Jennifer to her.

Appellant's defense of alibi which remains unsubstantiated and uncorroborated falls in the light of the positive and
unequivocal declaration of Jennifer. It is an oft-quoted doctrine that positive identification prevails over denial and
alibi. 23 Further, alibi must receive credible corroboration from disinterested witnesses. 24 There is absolutely none in
this case. Going further, appellant did not even attempt to demonstrate that it was physically impossible for him to
be present at the place of the crime at the time it was committed. It is well-settled that for the defense of alibi to
prosper, the accused must prove, not only that he was at some other place at the time of the commission of the
crime, but also that it was physically impossible for him to be at the locus delicti or within its immediate vicinity. 25

Based on the foregoing, appellant's submission that his conviction was based on insufficient circumstantial evidence
is clearly untenable. Circumstantial evidence is characterized as that evidence which proves a fact or series of facts
from which the facts in issue may be established by inference. 26 Appellant's conviction was based on the positive
and direct testimony of the complainant Jennifer. Well-settled is the rule that the lone testimony of the victim in the
crime of rape if credible is sufficient to sustain a conviction. This is so because from the nature of the offense the
only evidence that can oftentimes be offered to establish the guilt of the accused is the complainant's
testimony. 27 Additionally, when a victim says she was raped, she says in effect all that is necessary to show that
rape was committed on her; 28 and if found credible, the lone declaration of facts given by the offended party would
be sufficient to sustain a conviction. 29

The trial court convicted the accused "[u]nder Article 335 of the Revised Penal Code", without specifying under
which paragraph or mode the crime was committed. Under Article 335 of the Revised Penal Code, rape is
committed thus:

Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

It is settled that sexual intercourse with a woman who is a mental retardate constitutes statutory rape, which does
not require proof that the accused used force or intimidation in having carnal knowledge of the victim for
conviction. 30 However, the fact of her mental retardation was not alleged in the information and, therefore, cannot be
the basis for conviction. 31 Nevertheless, there is adequate evidence to show that appellant used force and
intimidation in committing the crime of rape in this case, which mode of committing rape was alleged in the
Information. Jennifer's testimony sufficiently demonstrated that the sexual act was forced on her as she declared
that she resisted or "lumaban
ako".32 It has been held that "[b]ecause the mental faculties of a retardate with the mental age of a six-year old are
different from those of a fully functioning adult, the degree of force needed to overwhelm her is less. 33

We are cognizant of the fact that the Information accused appellant "of the crime of Rape, defined and penalized
under Article 335, Par. 3 of the Revised Penal Code". Nonetheless, it is axiomatic that the nature and character of
the crime charged are determined not by the designation of the specific crime but by the facts alleged in the
Information. 34 Stated otherwise, in the interpretation of an information, what controls is not the designation but the
description of the offense charged. 35 The facts set forth in the Information clearly charged appellant of having carnal
knowledge with the complainant "by means of force, intimidation and threats."

In fine, the trial court correctly found accused guilty of rape, but we must clarify and specify that his conviction is
based on paragraph 1, Article 335 of the Revised Penal Code which is punishable with the penalty of reclusion
perpetua.

Finally, the trial court failed to order appellant to indemnify complainant although it did award moral damages. Thus,
and in line with the pronouncement in People vs. Victor 36 appellant should be made to pay P50,000.00 as
indemnification. The award of P100,000.00 granted by the trial court as and for moral damages is reduced to
P50,000.00 following and adhering to current jurisprudence. 37

WHEREFORE, finding the conviction of appellant supported by the evidence on record, the Court hereby AFFIRMS
said judgment, with the modification that aside from the payment of FIFTY THOUSAND PESOS (P50,000.00) as
moral damages to the victim, appellant is further ordered to indemnify private complainant in the amount of FIFTY
THOUSAND PESOS (P50,000.00) as compensatory damages.

SO ORDERED.
G.R. No. 132875-76 February 3, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROMEO G. JALOSJOS, accused-appellant.

RESOLUTION

YNARES-SANTIAGO, J.:

The accused-appellant, Romeo F. Jaloslos is a full-pledged member of Congress who is now confined at the
national penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness on six counts1 is
pending appeal. The accused-appellant filed this motion asking that he be allowed to fully discharge the duties of a
Congressman, including attendance at legislative sessions and committee meetings despite his having been
convicted in the first instance of a non-bailable offense.

The issue raised is one of the first impression.

Does membership in Congress exempt an accused from statutes and rules which apply to validly incarcerated
persons in general? In answering the query, we are called upon to balance relevant and conflicting factors in the
judicial interpretation of legislative privilege in the context of penal law.

The accused-appellant's "Motion To Be Allowed To Discharge Mandate As Member of House of Representatives"

was filed on the grounds that —

1. Accused-appellant's reelection being an expression of popular will cannot be rendered inutile by any
ruling, giving priority to any right or interest — not even the police power of the State.

2. To deprive the electorate of their elected representative amounts to taxation without representation.

3. To bar accused-appellant from performing his duties amounts to his suspension/removal and mocks the
renewed mandates entrusted to him by the people.

4. The electorate of the First District of Zamboanga del Norte wants their voice to be heard.

5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S. Congress.

6. The House treats accused-appellant as a bona fide member thereof and urges a co-equal branch of
government to respect its mandate.

7. The concept of temporary detention does not necessarily curtail the duty of accused-appellant to
discharge his mandate.

8. Accused-appellant has always complied with the conditions/restrictions when allowed to leave jail.

The primary argument of the movant is the "mandate of sovereign will." He states that the sovereign electorate of
the First District of Zamboanga del Norte chose him as their representative in Congress. Having been re-elected by
his constituents, he has the duty to perform the functions of a Congressman. He calls this a covenant with his
constituents made possible by the intervention of the State. He adds that it cannot be defeated by insuperable
procedural restraints arising from pending criminal cases.

True, election is the expression of the sovereign power of the people. In the exercise of suffrage, a free people
expects to achieve the continuity of government and the perpetuation of its benefits. However, inspite of its
importance, the privileges and rights arising from having been elected may be enlarged or restricted by law. Our first
task is to ascertain the applicable law.

We start with the incontestable proposition that all top officials of Government-executive, legislative, and judicial are
subject to the majesty of law. There is an unfortunate misimpression in the public mind that election or appointment
to high government office, by itself, frees the official from the common restraints of general law. Privilege has to be
granted by law, not inferred from the duties of a position. In fact, the higher the rank, the greater is the requirement
of obedience rather than exemption.

The immunity from arrest or detention of Senators and members of the House of Representatives, the latter
customarily addressed as Congressmen, arises from a provision of the Constitution. The history of the provision
shows that privilege has always been granted in a restrictive sense. The provision granting an exemption as a
special privilege cannot be extended beyond the ordinary meaning of its terms. It may not be extended by
intendment, implication or equitable considerations.
The 1935 Constitution provided in its Article VI on the Legislative Department.

Sec 15. The Senators and Members of the House of Representatives shall in all cases except treason,
felony, and breach of the peace be privileged from arrest during their attendance at the sessions of
Congress, and in going to and returning from the same, . . .

Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A
congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not claim
parliamentary immunity from arrest. He was subject to the same general laws governing all persons still to be tried
or whose convictions were pending appeal.

The 1973 Constitution broadened the privilege of immunity as follows:

Art. VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses punishable by not more than six
years imprisonment, be privileged from arrest during his attendance at its sessions and in going to and
returning from the same.

For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The restrictive
interpretation of immunity and intent to confine it within carefully defined parameters is illustrated by the concluding
portion of the provision, to wit:

. . . but the Batasang Pambansa shall surrender the member involved the custody of the law within twenty
four hours after its adjournment for a recess or for its next session, otherwise such privilege shall cease
upon its failure to do so.

The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the
subject Congressman to the custody of the law. The requirement that he should be attending sessions or committee
meetings has also been removed. For relatively minor offenses, it is enough that Congress is in session.

The accused-appellant argues that a member of Congress' function to attend sessions is underscored by Section 16
(2), Article VI of the Constitution which states that —

(2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn
from day to day and may compel the attendance of absent Members in such manner, and under such
penalties, as such House may provide.

However, the accused-appellant has not given any reason why he should be exempted from the operation of
Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend
sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a crime
punishable by imprisonment of more than six months is not merely authorized by law, it has constitutional
foundations.

Accused-appellant's reliance on the ruling in Aguinaldo v. Santos2, which states, inter alia, that —

The Court should never remove a public officer for acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right to elect their officers. When a people have elected a
man to office, it must be assumed that they did this with the knowledge of his life and character, and that
they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the Court, by
reason of such fault or misconduct, to practically overrule the will of the people.

will not extricate him from his predicament. It can be readily seen in the above-quoted ruling that the Aguinaldo case
involves the administrative removal of a public officer for acts done prior to his present term of office. It does not
apply to imprisonment arising from the enforcement of criminal law. Moreover, in the same way that preventive
suspension is not removal, confinement pending appeal is not removal. He remains a congressman unless expelled
by Congress or, otherwise, disqualified.

One rationale behind confinement, whether pending appeal or after final conviction, is public self-defense. Society
must protect itself. It also serves as an example and warning to others.

A person charged with crime is taken into custody for purposes of the administration of justice. As stated in United
States v. Gustilo,3 it is the injury to the public which State action in criminal law seeks to redress. It is not the injury
to the complainant. After conviction in the Regional Trial Court, the accused may be denied bail and thus subjected
to incarceration if there is risk of his absconding.4

The accused-appellant states that the plea of the electorate which voted him into office cannot be supplanted by
unfounded fears that he might escape eventual punishment if permitted to perform congressional duties outside his
regular place of confinement.
It will be recalled that when a warrant for accused-appellant's arrest was issued, he fled and evaded capture despite
a call from his colleagues in the House of Representatives for him to attend the sessions and to surrender
voluntarily to the authorities. Ironically, it is now the same body whose call he initially spurned which accused-
appellant is invoking to justify his present motion. This can not be countenanced because, to reiterate, aside from its
being contrary to well-defined Constitutional restrains, it would be a mockery of the aims of the State's penal
system.

Accused-appellant argues that on several occasions the Regional Trial Court of Makati granted several motions to
temporarily leave his cell at the Makati City Jail, for official or medical reasons, to wit:

a) to attend hearings of the House Committee on Ethics held at the Batasan Complex, Quezon City, on the
issue of whether to expel/suspend him from the House of Representatives;

b) to undergo dental examination and treatment at the clinic of his dentist in Makati City;

c) to undergo a thorough medical check-up at the Makati Medical Center, Makati City;

d) to register as a voter at his hometown in Dapitan City. In this case, accused-appellant commuted by
chartered plane and private vehicle.

He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City, when he
was likewise allowed/permitted to leave the prison premises, to wit.

a) to join "living-out" prisoners on "work-volunteer program" for the purpose of 1) establishing a mahogany
seedling bank and 2) planting mahogany trees, at the NBP reservation. For this purpose, he was assigned
one guard and allowed to use his own vehicle and driver in going to and from the project area and his place
of confinement.

b) to continue with his dental treatment at the clinic of his dentist in Makati City.

c) to be confined at the Makati Medical Center in Makati City for his heart condition.

There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency or
compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or
upon court orders.

What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend
congressional sessions and committee meeting for five (5) days or more in a week will virtually make him free man
with all the privilege appurtenant to his position. Such an aberrant situation not only elevates accused-appellant's
status to that of a special class, it also would be a mockery of the purposes of the correction system. Of particular
relevance in this regard are the following observations of the Court in Martinez v. Morfe:5

The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is, to
be sure, a full recognition of the necessity to have members of Congress, and likewise delegates to the
Constitutional Convention, entitled to the utmost freedom to enable them to discharge their vital
responsibilities, bowing to no other force except the dictates of their conscience of their conscience.
Necessarily the utmost latitude in free speech should be accorded them. When it comes to freedom from
arrest, however, it would amount to the creation of a privileged class, without justification in reason, if
notwithstanding their liability for a criminal offense, they would be considered immune during their
attendance in Congress and in going to and returning from the same. There is likely to be no dissent from
the proposition that a legislator or a delegate can perform his functions efficiently and well, without the need
for any transgression of the criminal law. Should such an unfortunate event come to pass, he is to be treated
like any other citizen considering that there is a strong public interest in seeing to it that crime should not go
unpunished. To the fear that may be expressed that the prosecuting arm of the government might unjustly
go after legislators belonging to the minority, it suffices to answer that precisely all the safeguards thrown
around an accused by the Constitution, solicitous of the rights of an individual, would constitute an obstacle
to such an attempt at abuse of power. The presumption of course is that the judiciary would remain
independent. It is trite to say that in each and every manifestation of judicial endeavor, such a virtue is of the
essence.

The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their voices to
be heard and that since he is treated as bona fide member of the House of Representatives, the latter urges a co-
equal branch of government to respect his mandate. He also claims that the concept of temporary detention does
not necessarily curtail his duty to discharge his mandate and that he has always complied with the
conditions/restrictions when he is allowed to leave jail.

We remain unpersuaded. 1âwphi 1.nêt

No less than accused-appellant himself admits that like any other member of the House of Representatives "[h]e is
provided with a congressional office situated at Room N-214, North Wing Building, House of Representatives
Complex, Batasan Hills, Quezon City, manned by a full complement of staff paid for by Congress. Through [an]
inter-department coordination, he is also provided with an office at the Administration Building, New Bilibid Prison,
Muntinlupa City, where he attends to his constituents." Accused-appellant further admits that while under detention,
he has filed several bills and resolutions. It also appears that he has been receiving his salaries and other monetary
benefits. Succinctly stated, accused-appellant has been discharging his mandate as a member of the House of
Representative consistent with the restraints upon one who is presently under detention. Being a detainee, accused-
appellant should not even have been allowed by the prison authorities at the National Penitentiary to perform these
acts.

When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the
limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative
results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a
person with full knowledge that he suffering from a terminal illness, they do so knowing that at any time, he may no
longer serve his full term in office.

In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.

The Constitution guarantees: ". . . nor shall any person be denied the equal protection of laws."6 This simply means
that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed.7 The
organs of government may not show any undue favoritism or hostility to any person. Neither partiality not prejudice
shall be displayed.

Does being an elective official result in a substantial distinction that allows different treatment? Is being a
Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class
as all persons validly confined under law?

The performance of legitimate and even essential duties by public officers has never been an excuse to free a
person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant
asserts that the duty to legislative ranks highest in the hierarchy of government. The accused-appellant is only one
of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the
duties of legislation. Congress continues to function well in the physical absence of one or a few of its members.
Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also
be deemed the highest for that particular duty. The importance of a function depends on the need to its exercise.
The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has
the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial
constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner
into a different classification from those others who are validly restrained by law.

A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made in favor
of or against groups or types of individuals.8

The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of
government authority to regulate even if thereby certain groups may plausibly assert that their interests are
disregarded.9

We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law
enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of
prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are
germane to the purposes of the law and apply to all those belonging to the same class.10

Imprisonment is the restraint of a man's personal liberty; coercion exercised upon a person to prevent the free
exercise of his power of
locomotion.11

More explicitly, "imprisonment" in its general sense, is the restraint of one's liberty. As a punishment, it is restraint by
judgment of a court or lawful tribunal, and is personal to the accused.12 The term refers to the restraint on the
personal liberty of another; any prevention of his movements from place to place, or of his free action according to
his own pleasure and will.13 Imprisonment is the detention of another against his will depriving him of his power of
locomotion14 and it "[is] something more than mere loss of freedom. It includes the notion of restraint within limits
defined by wall or any exterior barrier."15

It can be seen from the foregoing that incarceration, by its nature, changes an individual's status in society.16 Prison
officials have the difficult and often thankless job of preserving the security in a potentially explosive setting, as well
as of attempting to provide rehabilitation that prepares inmates for re-entry into the social mainstream. Necessarily,
both these demands require the curtailment and elimination of certain rights.17
Premises considered, we are constrained to rule against the accused-appellant's claim that re-election to public
office gives priority to any other right or interest, including the police power of the State.

WHEREFORE, the instant motion is hereby DENIED.

SO ORDERED.
G.R. No. 187495 April 21, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
EDGAR JUMAWAN, Accused-Appellant.

DECISION

"Among the duties assumed by the husband are his duties to love, cherish and protect his wife, to give her a home,
to provide her with the comforts and the necessities of life within his means, to treat her kindly and not cruelly or
inhumanely. He is bound to honor her x x x; it is his duty not only to maintain and support her, but also to protect her
from oppression and wrong."1

REYES, J.:

Husbands do not have property rights over their wives' bodies. Sexual intercourse, albeit within the realm of
marriage, if not consensual, is rape. This is the clear State policy expressly legislated in Section 266-A of the
Revised Penal Code (RPC), as amended by Republic Act (R.A.) No. 8353 or the Anti-Rape Law of 1997.

The Case

This is an automatic review2 of the Decision3 dated July 9, 2008 of the Court of Appeals (CA) in CA-G.R. CR-HC No.
00353, which affirmed the Judgment4 dated April 1, 2002 of the Regional Trial Court (RTC) of Cagayan de Oro City,
Branch 19, in Criminal Case Nos. 99-668 and 99-669 convicting him to suffer the penalty of reclusion perpetua for
each count.

The Facts

Accused-appellant and his wife, KKK,5 were married on October 18, 1975. They Ii ved together since then and
raised their four (4) children6 as they put up several businesses over the years.

On February 19, 1999, KKK executed a Complaint-Affidavit,7 alleging that her husband, the accused-appellant,
raped her at 3 :00 a.m. of December 3, 1998 at their residence in Phase 2, Villa Ernesto, Gusa, Cagayan de Oro
City, and that on December 12, 1998, the accused-appellant boxed her shoulder for refusing to have sex with him.

On June 11, 1999, the Office of the City Prosecutor of Cagayan de Oro City issued a Joint Resolution,8 finding
probable cause for grave threats, less serious physical injuries and rape and recommending that the appropriate
criminal information be filed against the accused-appellant.

On July 16, 1999, two Informations for rape were filed before the RTC respectively docketed as Criminal Case No.
99-6689 and Criminal Case No. 99-669.10 The Information in Criminal Case No. 99-668 charged the accused-
appellant as follows:

That on or about 10:30 in the evening more or less, of October 9, 1998, at Gusa, Cagayan de Oro City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused by means of force upon person did
then and there wilfully, unlawfully and feloniously have carnal knowledge with the private complainant, her [sic] wife,
against the latter[']s will.

Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997.

Meanwhile the Information in Criminal Case No. 99-669 reads:

That on or about 10:30 in the evening more or less, of October 10, 1998, at Gusa, Cagayan de Oro City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused by means of force upon person did
then and there wilfully, unlawfully and feloniously have carnal knowledge with the private complainant, her [sic] wife,
against the latter's will.

Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997.

The accused-appellant was arrested upon a warrant issued on July 21, 1999.11 On August 18, 1999, the accused-
appellant filed a Motion for Reinvestigation,12 which was denied by the trial court in an Order13 dated August 19,
1999. On even date, the accused-appellant was arraigned and he entered a plea of not guilty to both charges.14

On January 10, 2000, the prosecution filed a Motion to Admit Amended Information15 averring that the name of the
private complainant was omitted in the original informations for rape. The motion also stated that KKK, thru a
Supplemental Affidavit dated November 15, 1999,16 attested that the true dates of commission of the crime are
October 16, 1998 and October 1 7, 1998 thereby modifying the dates stated in her previous complaint-affidavit. The
motion was granted on January 18, 2000.17 Accordingly, the criminal informations were amended as follows:
Criminal Case No. 99-668:

That on or about October 16, 1998 at Gusa, Cagayan de Oro City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused by means of force upon person did then and there wilfully, unlawfully
and feloniously have carnal knowledge with the private complainant, his wife, [KKK], against the latter's will.

Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997.18

Criminal Case No. 99-669:

That on or about October 17, 1998 at Gusa, Cagayan de Oro City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused by means of force upon person did then and there wilfully, unlawfully
and feloniously have carnal knowledge with the private complainant, his wife, [KKK], against the latter's will.

Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997.19

The accused-appellant was thereafter re-arraigned. He maintained his not guilty plea to both indictments and a joint
trial of the two cases forthwith ensued.

Version of the prosecution

The prosecution's theory was anchored on the testimonies of KKK, and her daughters MMM and 000, which,
together with pertinent physical evidence, depicted the following events:

KKK met the accused-appellant at the farm of her parents where his father was one of the laborers. They got
married after a year of courtship.20 When their first child, MMM, was born, KKK and the accused-appellant put up a
sari-sari store.21 Later on, they engaged in several other businesses -trucking, rice mill and hardware. KKK managed
the businesses except for the rice mill, which, ideally, was under the accused-appellant's supervision with the help
of a trusted employee. In reality, however, he merely assisted in the rice mill business by occasionally driving one of
the trucks to haul goods.22

Accused-appellant's keenness to make the businesses flourish was not as fervent as KKK's dedication. Even the
daughters observed the disproportionate labors of their parents.23 He would drive the trucks sometimes but KKK was
the one who actively managed the businesses.24

She wanted to provide a comfortable life for their children; he, on the other hand, did not acquiesce with that
objective.25

In 1994, KKK and the accused-appellant bought a lot and built a house in Villa Ernesto, Gusa, Cagayan de Oro
City.26 Three of the children transferred residence therein while KKK, the accused-appellant and one of their sons
stayed in Dangcagan, Bukidnon. She shuttled between the two places regularly and sometimes he accompanied
her.27 In 1998, KKK stayed in Gusa, Cagayan De Oro City most of the days of the week.28 On Wednesdays, she went
to Dangcagan, Bukidnon to procure supplies for the family store and then returned to Cagayan de Oro City on the
same day.29

Conjugal intimacy did not really cause marital problems between KKK and the accused-appellant. It was, in fact,
both frequent and fulfilling. He treated her well and she, of course, responded with equal degree of
enthusiasm.30 However, in 1997, he started to be brutal in bed. He would immediately remove her panties and, sans
any foreplay, insert her penis in her vagina. His abridged method of lovemaking was physically painful for her so she
would resist his sexual ambush but he would threaten her into submission.31

In 1998, KKK and the accused-appellant started quarrelling usually upon his complaint that she failed to attend to
him. She was preoccupied with financial problems in their businesses and a bank loan. He wanted KKK to stay at
home because "a woman must stay in the house and only good in bed (sic) x x x." She disobeyed his wishes and
focused on her goal of providing a good future for the children.32

Four days before the subject rape incidents or on October 12, 1998, KKK and the accused-appellant slept together
in Cebu City where the graduation rites of their eldest daughter were held. By October 14, 1998, the three of them
were already back in Cagayan de Oro City.33

On October 16, 1998, the accused-appellant, his wife KKK and their children went about their nightly routine. The
family store in their residence was closed at about 9:00 p.m. before supper was taken. Afterwards, KKK and the
children went to the girls' bedroom at the mezzanine of the house to pray the rosary while the accused-appellant
watched television in the living room.34 OOO and MMM then prepared their beds. Soon after, the accused-appellant
fetched KKK and bid her to come with him to their conjugal bedroom in the third floor of the house. KKK complied.35
Once in the bedroom, KKK changed into a daster and fixed the matrimonial bed but she did not lie thereon with the
accused-appellant and instead, rested separately in a cot near the bed. Her reclusive behavior prompted him to ask
angrily: "[W]hy are you lying on the c{o]t[?]", and to instantaneously order: "You transfer here [to] our bed."36

KKK insisted to stay on the cot and explained that she had headache and abdominal pain due to her forthcoming
menstruation. Her reasons did not appease him and he got angrier. He rose from the bed, lifted the cot and threw it
against the wall causing KKK to fall on the floor. Terrified, KKK stood up from where she fell, took her pillow and
transferred to the bed.37

The accused-appellant then lay beside KKK and not before long, expressed his desire to copulate with her by
tapping his fingers on her lap. She politely declined by warding off his hand and reiterating that she was not feeling
well.38

The accused-appellant again asserted his sexual yearning and when KKK tried to resist by holding on to her
panties, he pulled them down so forcefully they tore on the sides.39 KKK stayed defiant by refusing to bend her legs.40

The accused-appellant then raised KKK's daster,41 stretched her legs apart and rested his own legs on them. She
tried to wrestle him away but he held her hands and succeeded in penetrating her. As he was carrying out his carnal
desires, KKK continued to protest by desperately shouting: "[D]on 't do that to me because I'm not feeling well."42

With a concrete wall on one side and a mere wooden partition on the other enclosing the spouses' bedroom,43 KKK's
pleas were audible in the children's bedroom where MMM lay awake.

Upon hearing her mother crying and hysterically shouting: "Eddie, don't do that to me, have pity on me,"44 MMM
woke up 000 who prodded her to go to their parents' room.45 MMM hurriedly climbed upstairs, vigorously knocked on
the door of her parents' bedroom and inquired: "Pa, why is it that Mama is crying?"46 The accused-appellant then
quickly put on his briefs and shirt, partly opened the door and said: "[D]on 't interfere because this is a family
trouble," before closing it again.47 Since she heard her mother continue to cry, MMM ignored his father's admonition,
knocked at the bedroom door again, and then kicked it.48 A furious accused-appellant opened the door wider and
rebuked MMM once more: "Don't interfere us. Go downstairs because this is family trouble!" Upon seeing KKK
crouching and crying on top of the bed, MMM boldly entered the room, approached her mother and asked: "Ma, why
are you crying?" before asking her father: "Pa, what happened to Mama why is it that her underwear is torn[?]"49

When MMM received no definite answers to her questions, she helped her mother get up in order to bring her to the
girls' bedroom. KKK then picked up her tom underwear and covered herself with a blanket.50 However, their breakout
from the room was not easy. To prevent KKK from leaving, the accused-appellant blocked the doorway by extending
his arm towards the knob. He commanded KKK to "[S]tay here, you sleep in our room," when the trembling KKK
pleaded: "Eddie, allow me to go out." He then held KKK's hands but she pulled them back. Determined to get away,
MMM leaned against door and embraced her mother tightly as they pushed their way out.51

In their bedroom, the girls gave their mother some water and queried her as to what happened.52 KKK relayed:
"[Y]our father is an animal, a beast; he forced me to have sex with him when I'm not feeling well." The girls then
locked the door and let her rest."53

The accused-appellant's aggression recurred the following night. After closing the family store on October 17, 1998,
KKK and the children took their supper. The accused-appellant did not join them since, according to him, he already
ate dinner elsewhere. After resting for a short while, KKK and the children proceeded to the girls' bedroom and
prayed the rosary. KKK decided to spend the night in the room's small bed and the girls were already fixing the
beddings when the accused-appellant entered.

"Why are you sleeping in the room of our children", he asked KKK, who responded that she preferred to sleep with
the children.54 He then scoffed: "Its alright if you will not go with me, anyway, there are women that could be paid [P]
1,000.00." She dismissed his comment by turning her head away after retorting: "So be it." After that, he left the
room.55

He returned 15 minutes later56 and when KKK still refused to go with him, he became infuriated. He lifted her from
the bed and attempted to carry her out of the room as he exclaimed: "Why will you sleep here[?] Lets go to our
bedroom." When she defied him, he grabbed her short pants causing them to tear apart.57 At this point, MMM
interfered, "Pa, don't do that to Mama because we are in front of you."58

The presence of his children apparently did not pacify the accused-appellant who yelled, "[E]ven in front of you, I
can have sex of your mother [sic J because I'm the head of the family." He then ordered his daughters to leave the
room. Frightened, the girls obliged and went to the staircase where they subsequently heard the pleas of their
helpless mother resonate with the creaking bed.59

The episodes in the bedroom were no less disturbing. The accused-appellant forcibly pulled KKK's short pants and
panties. He paid no heed as she begged, "[D]on 't do that to me, my body is still aching and also my abdomen and I
cannot do what you wanted me to do [sic]. I cannot withstand sex."60
After removing his own short pants and briefs, he flexed her legs, held her hands, mounted her and forced himself
inside her. Once gratified, the accused-appellant put on his short pants and briefs, stood up, and went out of the
room laughing as he conceitedly uttered: "[I]t s nice, that is what you deserve because you are [a] flirt or fond of
sex." He then retreated to the masters' bedroom.61

Sensing that the commotion in their bedroom has ceased, MMM and OOO scurried upstairs but found the door
locked. MMM pulled out a jalousie window, inserted her arm, reached for the doorknob inside and disengaged its
lock. Upon entering the room, MMM and OOO found their mother crouched on the bed with her hair disheveled. The
girls asked: "Ma, what happened to you, why are you crying?" KKK replied: "[Y}our father is a beast and animal, he
again forced me to have sex with him even if I don't feel well. "62

Version of the defense

The defense spun a different tale. The accused-appellant's father owned a land adjacent to that of KKK's father. He
came to know KKK because she brought food for her father's laborers. When they got married on October 18, 1975,
he was a high school graduate while she was an elementary graduate.

Their humble educational background did not deter them from pursuing a comfortable life. Through their joint hard
work and efforts, the couple gradually acquired personal properties and established their own businesses that
included a rice mill managed by the accused-appellant. He also drove their trucks that hauled coffee, copra, or
com.63

The accused-appellant denied raping his wife on October 16 and 17, 1998. He claimed that on those dates he was
in Dangcagan, Bukidnon, peeling com. On October 7, his truck met an accident somewhere in Angeles Ranch,
Maluko, Manolo Fortich, Bukidnon. He left the truck by the roadside because he had to attend MMM's graduation in
Cebu on October 12 with KKK. When they returned to Bukidnon on October 14, he asked KKK and MMM to
proceed to Cagayan de Oro City and just leave him behind so he can take care of the truck and buy some com.64

Ryle Equia (Equia), the spouses' driver from January 1996 until June 1999 corroborated the above claims.
According to him, on October 16, 1998, the accused-appellant was within the vicinity of the rice mill's loading area in
Dangcagan, Bukidnon, cleaning a pick-up truck. On October 17, 1998, he and the accused-appellant were in
Dangcagan, Bukidnon, loading sacks of com into the truck. They finished loading at 3 :00 p.m. The accused-
appellant then instructed Equia to proceed to Maluko, Manolo Fortich, Bukidnon while the former attended a fiesta in
New Cebu, Kianggat, Dangcagan, Bukidnon. At around 4:00 p.m., Equia, together with a helper and a mechanic, left
for Maluko in order to tow the stalled truck left there by the accused-appellant in October 7 and thereafter, bring it to
Cagayan de Oro City together with the separate truck loaded with com.

They arrived in Maluko at 7:00 p.m. and it took them three hours to turn the truck around and hoist it to the towing
bar of the other truck. At around 10:00 p.m., the accused-appellant arrived in Maluko. The four of them then
proceeded to Cagayan de Oro City where they arrived at 3 :00 a.m. of October 18, 1998. The accused-appellant
went to Gusa while the other three men brought the damaged truck to Cugman.65

The accused-appellant asserted that KKK merely fabricated the rape charges as her revenge because he took over
the control and management of their businesses as well as the possession of their pick-up truck in January 1999.
The accused-appellant was provoked to do so when she failed to account for their bank deposits and business
earnings. The entries in their bank account showed the balance of ₱3,190,539.83 on October 31, 1996 but after only
a month or on November 30, 1996, the amount dwindled to a measly ₱9,894.88.66 Her failure to immediately report
to the police also belies her rape allegations.67

KKK wanted to cover-up her extra-marital affairs, which the accused-appellant gradually detected from her odd
behavior. While in Cebu on October 12, 1998 for MMM's graduation rites, the accused-appellant and KKK had
sexual intercourse. He was surprised when his wife asked him to get a napkin to wipe her after having sex. He
tagged her request as "high-tech," because they did not do the same when they had sex in the past. KKK had also
become increasingly indifferent to him. When he arrives home, it was an employee, not her, who opened the door
and welcomed him. She prettied herself and would no longer ask for his permission whenever she went out.68

Bebs,69 KKK's cousin and a cashier in their Bukidnon store, gave the accused-appellant several love letters
purportedly addressed to Bebs but were actually intended for KKK.70

KKK had more than ten paramours some of whom the accused-appellant came to know as: Arsenio, Jong-Jong, Joy
or Joey, somebody from the military or the Philippine National Police, another one is a government employee, a
certain Fernandez and three other priests.71 Several persons told him about the paramours of his wife but he never
confronted her or them about it because he trusted her.72

What further confirmed his suspicions was the statement made by OOO on November 2, 1998. At that time, OOO
was listening loudly to a cassette player. Since he wanted to watch a television program, he asked OOO to tum
down the volume of the cassette player. She got annoyed, unplugged the player, spinned around and hit the
accused-appellant's head with the socket. His head bled. An altercation between the accused-appellant and KKK
thereafter followed because the latter took OOO's side. During the argument, OOO blurted out that KKK was better
off without the accused-appellant because she had somebody young, handsome, and a businessman unlike the
accused-appellant who smelled bad, and was old, and ugly.73

KKK also wanted their property divided between them with three-fourths thereof going to her and one-fourth to the
accused-appellant. However, the separation did not push through because the accused-appellant's parents
intervened.74 Thereafter, KKK pursued legal separation from the accused-appellant by initiating Barangay Case No.
00588-99 before the Office of Lupong Tagapamayapa of Gusa, Cagayan de Oro City and thereafter obtaining a
Certificate to File Action dated February 18, 1999.75

Ruling of the RTC

In its Judgment76 dated April 1, 2002, the RTC sustained the version proffered by the prosecution by giving greater
weight and credence to the spontaneous and straightforward testimonies of the prosecution's witnesses. The trial
court also upheld as sincere and genuine the two daughters' testimonies, as it is not natural in our culture for
daughters to testify against their own father for a crime such as rape if the same was not truly committed.

The trial court rejected the version of the defense and found unbelievable the accused-appellant's accusations of
extra-marital affairs and money squandering against KKK. The trial court shelved the accused-appellant's alibi for
being premised on inconsistent testimonies and the contradicting declarations of the other defense witness, Equia,
as to the accused-appellant's actual whereabouts on October 16, 1998. Accordingly, the RTC ruling disposed as
follows:

WHEREFORE, the Court hereby finds accused Edgar Jumawan "GUILTY" beyond reasonable doubt of the two (2)
separate charges of rape and hereby sentences him to suffer the penalty of reclusion perpetua for each, to pay
complainant [P]50,000.00 in each case as moral damages, indemnify complainant the sum of (P]75,000.00 in each
case, [P]50,000.00 as exemplary damages and to pay the costs.

SO ORDERED.77

Ruling of the CA

In its Decision78 dated July 9, 2008, the CA affirmed in toto the RTC ruling. The CA held that Section 14, Rule 110 of
the Rules of Criminal Procedure, sanctioned the amendment of the original informations. Further, the accused-
appellant was not prejudiced by the amendment because he was re-arraigned with respect to the amended
informations.

The CA found that the prosecution, through the straightforward testimony of the victim herself and the corroborative
declarations of MMM and OOO, was able to establish, beyond reasonable doubt, all the elements of rape under
R.A. No. 8353. The accused-appellant had carnal knowledge of KKK by using force and intimidation.

The CA also ruled that KKK's failure to submit herself to medical examination did not negate the commission of the
crime because a medical certificate is not necessary to prove rape.

The CA rejected the accused-appellant's argument that since he and KKK are husband and wife with mutual
obligations of and right to sexual intercourse, there must be convincing physical evidence or manifestations of the
alleged force and intimidation used upon KKK such as bruises. The CA explained that physical showing of external
injures is not indispensable to prosecute and convict a person for rape; what is necessary is that the victim was
forced to have sexual intercourse with the accused.

In addition, the CA noted that the fact that KKK and the accused-appellant are spouses only reinforces the
truthfulness of KKK's accusations because no wife in her right mind would accuse her husband of having raped her
if it were not true.

The delay in the filing of the rape complaint was sufficiently explained by KKK when she stated that she only found
out that a wife may charge his husband with rape when the fiscal investigating her separate complaint for grave
threats and physical injuries told her about it.

Finally, the CA dismissed the accused-appellant's alibi for lack of convincing evidence that it was physically
impossible for him to be at his residence in Cagayan de Oro City at the time of the commission of the crimes,
considering that Dangcagan, Bukidnon, the place where he allegedly was, is only about four or five hours away.
Accordingly, the decretal portion of the decision read:

WHEREFORE, in the light of the foregoing, the appealed Judgment is hereby AFFIRMED.

SO ORDERED.79

Hence, the present review. In the Court Resolution80 dated July 6, 2009, the Court notified the parties that, if they so
desire, they may file their respective supplemental briefs. In a Manifestation and Motion81 dated September 4, 2009,
the appellee, through the Office of the Solicitor General, expressed that it intends to adopt its Brief before the CA.
On April 16, 2012, the accused-appellant, through counsel, filed his Supplemental Brief, arguing that he was not in
Cagayan de Oro City when the alleged rape incidents took place, and the presence of force, threat or intimidation is
negated by: (a) KKK's voluntary act of going with him to the conjugal bedroom on October 16, 1998; (b) KKK's
failure to put up resistance or seek help from police authorities; and ( c) the absence of a medical certificate and of
blood traces in KKK's panties.82

Our Ruling

I. Rape and marriage: the historical connection

The evolution of rape laws is actually traced to two ancient English practices of 'bride capture' whereby a man
conquered a woman through rape and 'stealing an heiress' whereby a man abducted a woman and married her.83

The rape laws then were intended not to redress the violation of the woman's chastity but rather to punish the act of
obtaining the heiress' property by forcible marriage84 or to protect a man's valuable interest in his wife's chastity or
her daughter's virginity.85

If a man raped an unmarried virgin, he was guilty of stealing her father's property and if a man raped his wife, he
was merely using his property.86

Women were subjugated in laws and society as objects or goods and such treatment was justified under three
ideologies.

Under the chattel theory prevalent during the 6th century, a woman was the property of her father until she marries
to become the property of her husband.87 If a man abducted an unmarried woman, he had to pay the owner, and
later buy her from the owner; buying and marrying a wife were synonymous.88

From the 11th century to the 16th century, a woman lost her identity upon marriage and the law denied her political
power and status under the feudal doctrine of coverture.89

A husband had the right to chastise his wife and beat her if she misbehaved, allowing him to bring order within the
family.90

This was supplanted by the marital unity theory, which espoused a similar concept. Upon marrying, the woman
becomes one with her husband. She had no right to make a contract, sue another, own personal property or write a
will.91

II. The marital exemption rule

In the 17th century, Sir Matthew Hale (Hale), a Chief Justice in England, conceived the irrevocable implied consent
theory that would later on emerge as the marital exemption rule in rape. He stated that:

[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial
consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.92

The rule was observed in common law countries such as the United States of America (USA) and England. It gives
legal immunity to a man who forcibly sexually assaults his wife, an act which would be rape if committed against a
woman not his wife.93 In those jurisdictions, rape is traditionally defined as "the forcible penetration of the body of a
woman who is not the wife of the perpetrator."94

The first case in the USA that applied the marital exemption rule was Commonwealth v. Fogerty95 promulgated in
1857. The Supreme Judicial Court of Massachusetts pronounced that it would always be a defense in rape to show
marriage to the victim. Several other courts adhered to a similar rationale with all of them citing Hale's theory as
basis.96

The rule was formally codified in the Penal Code of New York in 1909. A husband was endowed with absolute
immunity from prosecution for the rape of his wife.97 The privilege was personal and pertained to him alone. He had
the marital right to rape his wife but he will be liable when he aids or abets another person in raping her.98

In the 1970s, the rule was challenged by women's movements in the USA demanding for its abolition for being
violative of married women's right to be equally protected under rape laws.99

In 1978, the rule was qualified by the Legislature in New York by proscribing the application of the rule in cases
where the husband and wife are living apart pursuant to a court order "which by its terms or in its effects requires
such living apart," or a decree, judgment or written agreement of separation.100
In 1983, the marital exemption rule was abandoned in New York when the Court of Appeals of New York declared
the same unconstitutional in People v. Liberta101 for lack of rational basis in distinguishing between marital rape and
non-marital rape. The decision, which also renounced Hale's irrevocable implied consent theory, ratiocinated as
follows:

We find that there is no rational basis for distinguishing between marital rape and nonmarital rape. The various
rationales which have been asserted in defense of the exemption are either based upon archaic notions about the
consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We
therefore declare the marital exemption for rape in the New York statute to be unconstitutional.

Lord Hale's notion of an irrevocable implied consent by a married woman to sexual intercourse has been cited most
frequently in support of the marital exemption. x x x Any argument based on a supposed consent, however, is
untenable. Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act
which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm
x x x. To ever imply consent to such an act is irrational and absurd. Other than in the context of rape statutes,
marriage has never been viewed as giving a husband the right to coerced intercourse on demand x x x. Certainly,
then, a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A
married woman has the same right to control her own body as does an unmarried woman x x x. If a husband feels
"aggrieved" by his wife's refusal to engage in sexual intercourse, he should seek relief in the courts governing
domestic relations, not in "violent or forceful self-help x x x."

The other traditional justifications for the marital exemption were the common-law doctrines that a woman was the
property of her husband and that the legal existence of the woman was "incorporated and consolidated into that of
the husband x x x." Both these doctrines, of course, have long been rejected in this State. Indeed, "[nowhere] in the
common-law world - [or] in any modem society - is a woman regarded as chattel or demeaned by denial of a
separate legal identity and the dignity associated with recognition as a whole human being x x x."102 (Citations
omitted)

By 1993, marital rape was a crime in all 50 states, with 17 of them, as well as the District of Columbia, outlawing the
act without exemptions. Meanwhile, the 33 other states granted some exemptions to a husband from prosecution
such as when the wife is mentally or physically impaired, unconscious, asleep, or legally unable to consent.103

III. Marital Rape in the Philippines

Interestingly, no documented case on marital rape has ever reached this Court until now. It appears, however, that
the old provisions of rape under Article 335 of the RPC adhered to Hale's irrevocable implied consent theory, albeit
in a limited form. According to Chief Justice Ramon C. Aquino,104 a husband may not be guilty of rape under Article
335 of Act No. 3815 but, in case there is legal separation, the husband should be held guilty of rape if he forces his
wife to submit to sexual intercourse.105

In 1981, the Philippines joined 180 countries in ratifying the United Nations Convention on the Elimination of all
Forms of Discrimination Against Women (UN-CEDAW).106 Hailed as the first international women's bill of rights, the
CEDAW is the first major instrument that contains a ban on all forms of discrimination against women. The
Philippines assumed the role of promoting gender equality and women's empowerment as a vital element in
addressing global concerns.107 The country also committed, among others, to condemn discrimination against
women in all its forms, and agreed to pursue, by all appropriate means and without delay, a policy of eliminating
discrimination against women and, to this end, undertook:

(a) To embody the principle of the equality of men and women in their national constitutions or other
appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate
means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting
all discrimination against women;

xxxx

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations,
customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women.108

In compliance with the foregoing international commitments, the Philippines enshrined the principle of gender
equality in the 1987 Constitution specifically in Sections 11 and 14 of Article II thereof, thus:

Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights.

xxxx
Sec. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality
before the law of women and men. The Philippines also acceded to adopt and implement the generally accepted
principles of international law such as the CEDA W and its allied issuances, viz:

Article II, Section 2. The Philippines renounces war as an instrument of national policy, and adopts the generally
accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality,
justice, freedom, cooperation, and amity with all nations. (Emphasis ours)

The Legislature then pursued the enactment of laws to propagate gender equality. In 1997, R.A. No. 8353
eradicated the stereotype concept of rape in Article 335 of the RPC.109 The law reclassified rape as a crime against
person and removed it from the ambit of crimes against chastity. More particular to the present case, and perhaps
the law's most progressive proviso is the 2nd paragraph of Section 2 thereof recognizing the reality of marital rape
and criminalizing its perpetration, viz:

Article 266-C. Effect of Pardon. - The subsequent valid marriage between the offended party shall extinguish the
criminal action or the penalty imposed.

In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party
shall extinguish the criminal action or the penalty: Provided, That the crime shall not be extinguished or the penalty
shall not be abated if the marriage is void ab initio.

Read together with Section 1 of the law, which unqualifiedly uses the term "man" in defining rape, it is unmistakable
that R.A. No. 8353 penalizes the crime without regard to the rapist's legal relationship with his victim, thus:

Article 266-A. Rape: When And How Committed. - Rape is committed:

1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

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.

The explicit intent to outlaw marital rape is deducible from the records of the deliberations of the 10th Congress on
the law's progenitor's, House Bill No. 6265 and Senate Bill No. 650. In spite of qualms on tagging the crime as
'marital rape' due to conservative Filipino impressions on marriage, the consensus of our lawmakers was clearly to
include and penalize marital rape under the general definition of 'rape,' viz:

MR. DAMASING: Madam Speaker, Your Honor, one more point

of clarification in the House version on Anti-Rape Bill, House Bill No. 6265, we never agreed to marital rape. But
under Article 266-C, it says here: "In case it is the legal husband who is the offender... " Does this presuppose that
there is now marital rape? x x x.

MR. LARA: x x x [I]n this jurisdiction, well, I only have a limited, very limited 17 years of private practice in the legal
profession, Madam Speaker, and I believe that I can put at stake my license as a lawyer in this jurisdiction there is
no law that prohibits a husband from being sued by the wife for rape. Even jurisprudence, we don't have any
jurisprudence that prohibits a wife from suing a husband. That is why even if we don't provide in this bill expanding
the definition of crime that is now being presented for approval, Madam Speaker, even if we don't provide here for
marital rape, even if we don't provide for sexual rape, there is the right of the wife to go against the husband. The
wife can sue the husband for marital rape and she cannot be prevented from doing so because in this jurisdiction
there is no law that prohibits her from doing so. This is why we had to put second paragraph of 266-C because it is
the belief of many of us. x x x, that if it is true that in this jurisdiction there is marital rape even if we don't provide it
here, then we must provide for something that will unify and keep the cohesion of the family together that is why we
have the second paragraph.

MR. DAMASING: Madam Speaker, Your Honor, under the House version specifically House Bill No. 6265 our
provision on a husband forcing the wife is not marital rape, it is marital sexual assault.

MR. LARA: That is correct, Madam Speaker.

MR. DAMASING: But here it is marital rape because there is no crime of sexual assault. So, Your Honor, direct to
the point, under Article 266-C, is it our understanding that in the second paragraph, quote: "In case it is the legal
husband who is the offender, this refers to marital rape filed against the husband? Is that correct?
MR. LARA: No, Madam Speaker, not entirely, no. The answer is no.

MR. DAMASING: So if the husband is guilty of sexual assault, what do you call- it?

MR. LARA: Sexual assault, Madam Speaker.

MR. DAMASING: There is no crime of sexual assault, Your Honor, we have already stated that. Because under 1
and 2 it is all denominated as rape, there is no crime of sexual assault. That is why I am sorry that our House
version which provided for sexual assault was not carried by the Senate version because all sexual crimes under
this bicameral conference committee report are all now denominated as rape whether the penalty is from reclusion
perpetua to death or whether the penalty is only prision mayor. So there is marital rape, Your Honor, is that correct?

xxxx

MR. DAMASING: Madam Speaker, Your Honor, I am in favor of this. I am in favor of punishing the husband who
forces the wife even to 30 years imprisonment. But please do not call it marital rape, call it marital sexual assault
because of the sanctity of marriage. x x x.110 (Emphasis ours)

HON. APOSTOL: In our version, we did not mention marital rape but marital rape is not excluded.

HON. ROCO: Yeah. No. But I think there is also no specific mention.

HON. APOSTOL: No. No. No. Silent lang 'yung marital rape.

xxxx

HON. ROCO: xx x [I]f we can retain the effect of pardon, then this marital rape can be implicitly contained in the
second paragraph. x x x So marital rape actually was in the House version x x x. But it was not another definition of
rape. You will notice, it only says, that because you are the lawful husband does not mean that you cannot commit
rape. Theoretically, I mean, you can beat up your wife until she's blue. And if the wife complains she was raped, I
guess that, I mean, you just cannot raise the defense x x x[:] I am the husband. But where in the marriage contract
does it say that I can beat you up? That's all it means. That is why if we stop referring to it as marital rape,
acceptance is easy. Because parang ang marital rape, married na nga kami. I cannot have sex. No, what it is saying
is you're [the] husband but you cannot beat me up. x x x. That's why to me it's not alarming. It was just a way of
saying you're [the] husband, you cannot say when I am charged with rape x x x.

PRESIDING OFFICER SHAHAN!: All right, so how do you propose it if we put it in[?]

HON. ROCO: x x x [A]ll we are saying [is] that if you are the lawful husband does not mean you can have carnal
knowledge by force[,] threat or intimidation or by depriving your wife reason, a grave abuse of authority, I don't know
how that cannot apply. Di ba yung, or putting an instrument into the, yun ang sinasabi ko lang, it is not meant to
have another classification of rape. It is all the same definition x x x.

xxxx

HON.ROCO: What is 266-F? x x x. Now if we can retain 266-F x x x, we can say that this rule is implicit already in
the first proviso. It implies na there is an instance when a husband can be charged [with] rape x x x.

HON. ROXAS: Otherwise, silent na.

HON. ROCO: Otherwise, we are silent na. So parang i-delete natin ito. But it is understood that this rule of evidence
is now transport[ed], put into 266-F, the effect of pardon.

PRESIDING OFFICER APOSTOL: We will retain this effect of pardon. We will remove marital rape.

HON. ROCO: No, yun ang, oo we will remove this one on page 3 but we will retain the one on page 8, the effect of
pardon. x x x [I]t is inferred but we leave it because after all it is just a rule of evidence. But I think we should
understand that a husband cannot beat at his wife to have sex. Di ha? I think that should be made clear. x x x.

xxxx

HON. ROCO: x x x [W]e are not defining a crime of marital rape. All we are saying is that if you're [the] legal
husband, Jesus Christ, don't beat up to have sex. I almost want, you are my wife, why do you have to beat me up.

So, ganoon. So, if we both justify it that way in the Report as inferred in proviso, I mean, we can face up, I hope, to
the women and they would understand that it is half achieved.
HON. ZAMORA: I think, Raul, as long as we understand that we are not defining or creating a new crime but
instead, we are just defining a rule of evidence. x x x.

HON. ROCO: Then, in which case we may just want to clarify as a rule of evidence the fact that he is husband is
not, does not negate.111

CHAIRMAN LARA: x x x We all agree on the substance of the point in discussion. The only disagreement now is
where to place it. Let us clear this matter. There are two suggestions now on marital rape. One is that it is rape if it is
done with force or intimidation or any of the circumstances that would define rape x x x immaterial. The fact that the
husband and wife are separated does not come into the picture. So even if they are living under one roof x x x for as
long as the attendant circumstances of the traditional rape is present, then that is rape.112

PRESIDING OFFICER ANGARA-CASTILLO: Mr. Chairman, x x x [t]his provision on marital rape, it does not
actually change the meaning of rape. It merely erases the doubt in anybody's mind, whether or not rape can indeed
be committed by the husband against the wife. So the bill really says, you having been married to one another is not
a legal impediment. So I don't really think there is any need to change the concept of rape as defined presently
under the revised penal code. This do[es] not actually add anything to the definition of rape. It merely says, it is
merely clarificatory. That if indeed the wife has evidence to show that she was really brow beaten, or whatever or
forced or intimidated into having sexual intercourse against her will, then the crime of rape has been committed
against her by the husband, notwithstanding the fact that they have been legally married. It does not change
anything at all, Mr. Chairman.

PRESIDING OFFICER APOSTOL: Yes, I think, there is no change on this x x x.113

The paradigm shift on marital rape in the Philippine jurisdiction is further affirmed by R.A. No. 9262,114 which regards
rape within marriage as a form of sexual violence that may be committed by a man against his wife within or outside
the family abode, viz:

Violence against women and their children refers to any act or a series of acts committed by any person against a
woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating
relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or
without the family abode, which result in or is likely to result in. physical, sexual, psychological harm or suffering, or
economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of
liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It
includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object,
making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the
victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the
woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover
to live in the conjugal home or sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of
force, physical or other harm or threat of physical or other harm or coercion;

c) Prostituting the woman or child.

Statistical figures confirm the above characterization. Emotional and other forms of non-personal violence are the
most common type of spousal violence accounting for 23% incidence among ever-married women. One in seven
ever-married women experienced physical violence by their husbands while eight percent (8%) experienced sexual
violence.115

IV. Refutation of the accused-appellant's arguments

The crux of the accused-appellant's plea for acquittal mirrors the irrevocable implied consent theory. In his appeal
brief before the CA, he posits that the two incidents of sexual intercourse, which gave rise to the criminal charges for
rape, were theoretically consensual, obligatory even, because he and the victim, KKK, were a legally married and
cohabiting couple. He argues that consent to copulation is presumed between cohabiting husband and wife unless
the contrary is proved.

The accused-appellant further claims that this case should be viewed and treated differently from ordinary rape
cases and that the standards for determining the presence of consent or lack thereof must be adjusted on the
ground that sexual community is a mutual right and obligation between husband and wife.116

The contentions failed to muster legal and rational merit.

The ancient customs and ideologies from which the irrevocable implied consent theory evolved have already been
superseded by modem global principles on the equality of rights between men and women and respect for human
dignity established in various international conventions, such as the CEDAW. The Philippines, as State Party to the
CEDAW, recognized that a change in the traditional role of men as well as the role of women in society and in the
family is needed to achieve full equality between them. Accordingly, the country vowed to take all appropriate
measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the
elimination of prejudices, customs and all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and women.117 One of such measures is R.A. No
8353 insofar as it eradicated the archaic notion that marital rape cannot exist because a husband has absolute
proprietary rights over his wife's body and thus her consent to every act of sexual intimacy with him is always
obligatory or at least, presumed.

Another important international instrument on gender equality is the UN Declaration on the Elimination of Violence
Against Women, which was Promulgated118 by the UN General Assembly subsequent to the CEDA W. The
Declaration, in enumerating the forms of gender-based violence that constitute acts of discrimination against
women, identified 'marital rape' as a species of sexual violence, viz:

Article 1

For the purposes of this Declaration, the term "violence against women" means any act of gender-based violence
that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats
of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

Article 2

Violence against women shall be understood to encompass, but not be limited to, the following:

(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female
children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional
practices harmful to women, non-spousal violence and violence related to exploitation;119 (Emphasis ours)

Clearly, it is now acknowledged that rape, as a form of sexual violence, exists within marriage. A man who
penetrates her wife without her consent or against her will commits sexual violence upon her, and the Philippines,
as a State Party to the CEDA W and its accompanying Declaration, defines and penalizes the act as rape under
R.A. No. 8353.

A woman is no longer the chattel-antiquated practices labeled her to be. A husband who has sexual intercourse with
his wife is not merely using a property, he is fulfilling a marital consortium with a fellow human being with dignity
equal120 to that he accords himself. He cannot be permitted to violate this dignity by coercing her to engage in a
sexual act without her full and free consent. Surely, the Philippines cannot renege on its international commitments
and accommodate conservative yet irrational notions on marital activities121 that have lost their relevance in a
progressive society.

It is true that the Family Code,122 obligates the spouses to love one another but this rule sanctions affection and
sexual intimacy, as expressions of love, that are both spontaneous and mutual123 and not the kind which is
unilaterally exacted by force or coercion.

Further, the delicate and reverent nature of sexual intimacy between a husband and wife excludes cruelty and
coercion. Sexual intimacy brings spouses wholeness and oneness. It is a gift and a participation in the mystery of
creation. It is a deep sense of spiritual communion. It is a function which enlivens the hope of procreation and
ensures the continuation of family relations. It is an expressive interest in each other's feelings at a time it is needed
by the other and it can go a long way in deepening marital relationship.124 When it is egoistically utilized to despoil
marital union in order to advance a felonious urge for coitus by force, violence or intimidation, the Court will step in
to protect its lofty purpose, vindicate justice and protect our laws and State policies. Besides, a husband who feels
aggrieved by his indifferent or uninterested wife's absolute refusal to engage in sexual intimacy may legally seek the
court's intervention to declare her psychologically incapacitated to fulfill an essential marital obligation.125 But he
cannot and should not demand sexual intimacy from her coercively or violently.

Moreover, to treat marital rape cases differently from non-marital rape cases in terms of the elements that constitute
the crime and in the rules for their proof, infringes on the equal protection clause. The Constitutional right to equal
protection of the laws126 ordains that similar subjects should not be treated differently, so as to give undue favor to
some and unjustly discriminate against others; no person or class of persons shall be denied the same protection of
laws, which is enjoyed, by other persons or other classes in like circumstances.127

As above discussed, the definition of rape in Section 1 of R.A. No. 8353 pertains to: (a) rape, as traditionally known;
(b) sexual assault; and (c) marital rape or that where the victim is the perpetrator's own spouse. The single definition
for all three forms of the crime shows that the law does not distinguish between rape committed in wedlock and
those committed without a marriage. Hence, the law affords protection to women raped by their husband and those
raped by any other man alike.
The posture advanced by the accused-appellant arbitrarily discriminates against married rape victims over
unmarried rape victims because it withholds from married women raped by their husbands the penal redress equally
granted by law to all rape victims.

Further, the Court adheres to and hereby adopts the rationale in Liberta in rejecting the argument akin to those
raised by herein accused-appellant. A marriage license should not be viewed as a license for a husband to forcibly
rape his wife with impunity. A married woman has the same right to control her own body, as does an unmarried
woman.128 She can give or withhold her consent to a sexual intercourse with her husband and he cannot unlawfully
wrestle such consent from her in case she refuses.

Lastly, the human rights of women include their right to have control over and decide freely and responsibly on
matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and
violence.129 Women do not divest themselves of such right by contracting marriage for the simple reason that human
rights are inalienable.130

In fine, since the law does not separately categorize marital rape and non-marital rape nor provide for different
definition or elements for either, the Court, tasked to interpret and apply what the law dictates, cannot trudge the
forbidden sphere of judicial legislation and unlawfully divert from what the law sets forth. Neither can the Court frame
distinct or stricter evidentiary rules for marital rape cases as it would inequitably burden its victims and unreasonably
and irrationally classify them differently from the victims of non-marital rape.

Indeed, there exists no legal or rational reason for the Court to apply the law and the evidentiary rules on rape any
differently if the aggressor is the woman's own legal husband. The elements and quantum of proof that support a
moral certainty of guilt in rape cases should apply uniformly regardless of the legal relationship between the
accused and his accuser.

Thus, the Court meticulously reviewed the present case in accordance with the established legal principles and
evidentiary policies in the prosecution and resolution of rape cases and found that no reversible error can be
imputed to the conviction meted the accused-appellant.

The evidence for the prosecution was

based on credible witnesses who gave
equally credible testimonies

In rape cases, the conviction of the accused rests heavily on the credibility of the victim. Hence, the strict mandate
that all courts must examine thoroughly the testimony of the offended party. While the accused in a rape case may
be convicted solely on the testimony of the complaining witness, courts are, nonetheless, duty-bound to establish
that their reliance on the victim's testimony is justified. Courts must ensure that the testimony is credible, convincing,
and otherwise consistent with human nature. If the testimony of the complainant meets the test of credibility, the
accused may be convicted on the basis thereof.131

It is settled that the evaluation by the trial court of the credibility of witnesses and their testimonies are entitled to the
highest respect. This is in view of its inimitable opportunity to directly observe the witnesses and their deportment,
conduct and attitude, especially during cross-examination. Thus, unless it is shown that its evaluation was tainted
with arbitrariness or certain facts of substance and value have been plainly overlooked, misunderstood, or
misapplied, the same will not be disturbed on appeal.132

After approximating the perspective of the trial court thru a meticulous scrutiny of the entire records of the trial
proceedings and the transcript of each witnesses' testimony, the Court found no justification to disturb its findings.

Rather, the Court observed that KKK and her testimony were both credible and spontaneous. Hailed to the witness
stand on six separate occasions, KKK never wavered neither did her statements vacillate between uncertainty and
certitude. She remained consistent, categorical, straightforward, and candid during the rigorous cross-examination
and on rebuttal examination, she was able to convincingly explain and debunk the allegations of the defense.

She vividly recounted how the accused-appellant forced her to have sex with him despite her refusal on October 16,
1998. He initially ordered her to sleep beside him in their conjugal bed by violently throwing the cot where she was
resting. In order not to aggravate his temper, KKK obeyed. On the bed, he insinuated for them to have sex. When
she rejected his advances due to abdominal pain and headache, his request for intimacy transformed into a
stubborn demand. Unyielding, KKK held her panties but the accused-appellant forcibly pulled them down. The tug
caused the small clothing to tear apart. She reiterated that she was not feeling well and begged him to stop. But no
amount of resistance or begging subdued him. He flexed her two legs apart, gripped her hands, mounted her, rested
his own legs on hers and inserted his penis into her vagina. She continued pleading but he never desisted.133

Her accurate recollection of the second rape incident on October 1 7, 1998 is likewise unmistakable. After the
appalling episode in the conjugal bedroom the previous night, KKK decided to sleep in the children's bedroom.
While her daughters were fixing the beddings, the accused-appellant barged into the room and berated her for
refusing to go with him to their conjugal bedroom. When KKK insisted to stay in the children's bedroom, the
accused-appellant got angry and pulled her up. MMM's attempt to pacify the accused-appellant further enraged him.
He reminded them that as the head of the family he could do whatever he wants with his wife. To demonstrate his
role as patriarch, he ordered the children to go out of the room and thereafter proceeded to force KKK into sexual
intercourse. He forcibly pulled down her short pants and panties as KKK begged "Dont do that to me, my body is still
aching and also my abdomen and I cannot do what you wanted me to do. I cannot withstand sex."134 But her pleas
fell on deaf ears. The accused-appellant removed his shorts and briefs, spread KKK's legs apart, held her hands,
mounted her and inserted his penis into her vagina. After gratifying himself, he got dressed, left the room as he
chuckled: "Its nice, that is what you deserve because you are [a] flirt or fond of sex."135

Entrenched is the rule that in the prosecution of rape cases, the essential element that must be proved is the
absence of the victim's consent to the sexual congress.136

Under the law, consent is absent when: (a) it was wrestled from the victim by force, threat or intimidation, fraudulent
machinations or grave abuse of authority; or (b) the victim is incapable of giving free and voluntary consent because
he/she is deprived of reason or otherwise unconscious or that the offended party is under 12 years of age or is
demented.

Contrary to the accused-appellant's asseverations, KKK's consent was wrestled from her through force and
intimidation both of which were established beyond moral certainty by the prosecution through the pertinent
testimony of KKK, viz:

On the October 16, 1998 rape incident:

(Direct Examination)

ATTY. LARGO:

Q So, while you were already lying on the bed together with your husband, do you remember what happened?

A He lie down beside me and asked me to have sex with him.

Q How did he manifest that he wanted to have sex with you?

A He put his hand on my lap and asked me to have sex with him but I warded off his hand.

Q Can you demonstrate to this Court how did he use his hand?

A Yes. "witness demonstrating on how the accused used his finger by touching or knocking her lap which means
that he wanted to have sex."

Q So, what did you do after that?

A I warded off his hand and refused because I was not feeling well. (at this juncture the witness is sobbing)

Q So, what did your husband do when you refused him to have sex with you?

A He insisted and he pulled my pantie forcibly, that is why my pantie [sic] was tom.

Q Why, what did you do when he started to pull your pantie [sic]?

A I resisted and tried to hold my pantie [sic] but I failed, because he is so strong.

xx xx

Q So, when your pantie [sic] was tom by your husband, what else did he do?

A He flexed my two legs and rested his two legs on my legs.

Q So after that what else did he do?

A He succeeded in having sex with me because he held my two hands no matter how I wrestled but I failed because
he is stronger than me.

COURT: Make it of record that the witness is sobbing while she is giving her testimony.

ATTY. LARGO: (To the witness cont'ng.)

Q So, what did you do when your husband already stretched your two legs and rode on you and held your two
hands?

A I told him, "don't do that because I'm not feeling well and my whole body is aching."

Q How did you say that to your husband?

A I told him, "don't do that to me because I'm not feeling well."

Q Did you say that in the manner you are saying now?

xxxx

A I shouted when I uttered that words.

xxxx

Q Was your husband able to consummate his desire?

xxxx

A Yes, sir, because I cannot do anything.137

(Cross-Examination)

ATTY. AMARGA;

Q Every time you have sex with your husband it was your husband normally remove your panty?

A Yes, Sir.

Q It was not unusual for your husband then to remove your panty because according to you he normally do that if he
have sex with you?

A Yes, Sir.

Q And finally according to you your husband have sex with you?

A Yes, Sir because he forcibly used me in spite of holding my panty because I don't want to have sex with him at
that time.

Q You did not spread your legs at that time when he removed your panty?

A Yes, Sir.

Q Meaning, your position of your legs was normal during that time?

A I tried to resist by not flexing my legs.

xxxx

Q At that time when your husband allegedly removed your panty he also remove your nightgown?

A No, Sir.

Q And he did pull out your duster [sic] towards your face?

A He raised my duster [sic] up.

Q In other words your face was covered when he raised your duster [sic]?

A No, only on the breast level.138

On the October 17, 1998 rape incident:

(Direct Examination)
ATTY. LARGO

Q So, after your children went out of the room, what transpired?

A He successfully having sex with me because he pulled my short pant and pantie forcible.

Q So, what did you say when he forcibly pulled your short and pantie?

A I told him, "don't do that to me, my body is still aching and also my abdomen and I cannot do what you wanted me
to do. I cannot withstand sex."

Q So, what happened to your short when he forcibly pulled it down?

A It was tom.

Q And after your short and pantie was pulled down by your husband, what did he do?

A He also removed his short and brief and flexed my two legs and mounted on me and succeeded in having sex
with me.139

The accused-appellant forced his wife when he knowingly overpowered her by gripping her hands, flexing her legs
and then resting his own legs thereon in order to facilitate the consummation of his much-desired non-consensual
sexual intercourse.

Records also show that the accused-appellant employed sufficient intimidation upon KKK. His actuations prior to the
actual moment of the felonious coitus revealed that he imposed his distorted sense of moral authority on his wife.
He furiously demanded for her to lay with him on the bed and thereafter coerced her to indulge his sexual craving.

The fury the accused-appellant exhibited when KKK refused to sleep with him on their bed, when she insisted to
sleep in the children's bedroom and the fact that he exercises dominance over her as husband all cowed KKK into
submission.

The fact that KKK voluntarily went with the accused-appellant to their conjugal bedroom on October 16, 1998 cannot
be stretched to mean that she consented to the forced sexual intercourse that ensued. The accused-appellant was
KKK's husband and hence it was customary for her to sleep in the conjugal bedroom. No consent can be deduced
from such act of KKK because at that juncture there were no indications that sexual intercourse was about to take
place. The issue of consent was still irrelevant since the act for which the same is legally required did not exist yet or
at least unclear to the person from whom the consent was desired. The significant point when consent must be
given is at that time when it is clear to the victim that her aggressor is soliciting sexual congress. In this case, that
point is when the accused-appellant tapped his fingers on her lap, a gesture KKK comprehended to be an invitation
for a sexual intercourse, which she refused.

Resistance, medical certificate and blood traces.

We cannot give credence to the accused-appellant's argument that KKK should have hit him to convey that she was
resisting his sexual onslaught. Resistance is not an element of rape and the law does not impose upon the victim
the burden to prove resistance140 much more requires her to raise a specific kind thereof.

At any rate, KKK put up persistent, audible and intelligible resistance for the accused-appellant to recognize that she
seriously did not assent to a sexual congress. She held on to her panties to prevent him from undressing her, she
refused to bend her legs and she repeatedly shouted and begged for him to stop.

Moreover, as an element of rape, force or intimidation need not be irresistible; it may be just enough to bring about
the desired result. What is necessary is that the force or intimidation be sufficient to consummate the purpose that
the accused had in mind141 or is of such a degree as to impel the defenseless and hapless victim to bow into
submission.142

Contrary to the accused-appellant's allusions, the absence of blood traces in KKK's panties or the lack of a medical
certificate do not negate rape. It is not the presence or absence of blood on the victim's underwear that determines
the fact of rape143 inasmuch as a medical certificate is dispensable evidence that is not necessary to prove
rape.144 These details do not pertain to the elements that produce the gravamen of the offense that is -sexual
intercourse with a woman against her will or without her consent.145

The accused-appellant harps on the acquittal ruling in People v. Godoy,146 the evidentiary circumstances of which
are, however, disparate from those in the present case. In Godoy, the testimony of the complainant was inherently
weak, inconsistent, and was controverted by the prosecution's medico-legal expert witness who stated that force
was not applied based on the position of her hymenal laceration. This led the Court to conclude that the absence of
any sign of physical violence on the victim's body is an indication of consent.147 Here, however, KKK's testimony is,
as discussed earlier, credible, spontaneous and forthright.

The corroborative testimonies of

MMM and OOO are worthy of credence.

The accused-appellant's assertion that MMM and OOO's testimonies lacked probative value as they did not witness
the actual rape is bereft of merit. It must be stressed that rape is essentially committed in relative isolation, thus, it is
usually only the victim who can testify with regard to the fact of the forced sexual intercourse.148 Hence, the probative
value of MMM and OOO's testimonies rest not on whether they actually witnessed the rape but on whether their
declarations were in harmony with KKK's narration of the circumstances, preceding, subsequent to and concurrent
with, the rape incidents.

MMM and OOO's testimonies substantiated significant points in KKK's narration. MMM heard KKK shouting and
crying: "Eddie, don’t do that to me, have pity on me"149 on the night of October 16, 1998 shortly after KKK and the
accused-appellant went to their conjugal bedroom. When MMM went upstairs to check on her mother, the accused-
appellant admonished her for meddling. Frustrated to aid her mother who persistently cried, MMM kicked the door
so hard the accused-appellant was prompted to open it and rebuke MMM once more. OOO heard all these
commotion from the room downstairs.

MMM then saw her mother crouched on the bed, crying, with her hair disheveled while her tom panty lay on the
floor. After a brief struggle with the accused-appellant, MMM and KKK were finally able to escape and retreat to the
children's bedroom where KKK narrated to her daughters: "[Y]our father is an animal, a beast; he forced me to have
sex with him when I'm not feeling well. "

KKK gave a similar narration to MMM and OOO the following night after the accused-appellant barged inside the
children's bedroom. The couple had an argument and when MMM tried to interfere, the accused-appellant ordered
her and OOO to get out after bragging that he can have sex with his wife even in front of the children because he is
the head of the family. The girls then stayed by the staircase where they afterwards heard their mother helplessly
crying and shouting for the accused-appellant to stop.

Indeed, the testimonies of KKK, MMM and OOO coherently depicted that the accused-appellant, through the use of
force and intimidation, had non-consensual and forced carnal knowledge of his wife, KKK on the nights of October
16 and 17, 1998.

KKK's helpless screams and pleas from inside the bedroom coupled with her verbal and physical resistance were
clear manifestations of coercion. Her appearance when MMM saw her on the bed after the accused appellant
opened the door on October 16, 1998, her conduct towards the accused-appellant on her way out of the room, and
her categorical outcry to her children after the two bedroom episodes - all generate the conclusion that the sexual
acts that occurred were against her will.

Failure to immediately report to the

police authorities, if satisfactorily
explained, is not fatal to the
credibility of a witness.

The testimonies of KKK and her daughters cannot be discredited merely because they failed to report the rape
incidents to the police authorities or that KKK belatedly filed the rape charges. Delay or vacillation by the victims in
reporting sexual assaults does not necessarily impair their credibility if such delay is satisfactorily explained.150

At that time, KKK and her daughters were not aware that a husband forcing his wife to submit to sexual intercourse
is considered rape. In fact, KKK only found out that she could sue his husband for rape when Prosecutor Benjamin
Tabique, Jr. (Prosecutor Tabique) told her about it when she filed the separate charges for grave threats and
physical injuries against the accused-appellant.151

It must be noted that the incidents occurred a year into the effectivity of R.A. No. 8353 abolishing marital exemption
in rape cases hence it is understandable that it was not yet known to a layman as opposed to legal professionals
like Prosecutor Tabique. In addition, fear of reprisal thru social humiliation which is the common factor that deter
rape victims from reporting the crime to the authorities is more cumbersome in marital rape cases. This is in view of
the popular yet outdated belief that it is the wife's absolute obligation to submit to her husband's carnal desires. A
husband raping his own wife is often dismissed as a peculiar occurrence or trivialized as simple domestic trouble.

Unfamiliarity with or lack of knowledge of the law criminalizing marital rape, the stigma and public scrutiny that could
have befallen KKK and her family had the intervention of police authorities or even the neighbors been sought, are
acceptable explanations for the failure or delay in reporting the subject rape incidents.

The victim -S testimony on the

witness stand rendered
unnecessary the presentation of her
complaint-affidavit as evidence.

The failure of the prosecution to present KKK's complaint-affidavit for rape is not fatal in view of the credible, candid
and positive testimony of KKK on the witness stand. Testimonial evidence carries more weight than the affidavit
since it underwent the rudiments of a direct, cross, re-direct and re-cross examinations. Affidavits or statements
taken ex parte are generally considered incomplete and inaccurate. Thus, by nature, they are inferior to testimony
given in court.152

Ill motive imputed to the victim

The ill motive, which the accused-appellant imputed to KKK, does not inspire belief as it is riddled with loopholes
generated by incongruent and flimsy evidence. The prosecution was able to establish that the ₱3 Million deposit in
the spouses' bank account was the proceeds of their loan from the Bank of Philippine Islands (BPI). Exhibit J, which
is a BPI ML instruction sheet dated October 31, 1996 in the amount of ₱3,149,840.63 is the same amount the
accused-appellant claimed to have entrusted to her wife. Although the accused-appellant denied being aware of
such loan, he admitted that approximately ₱3 Million was spent for the construction of their house. These pieces of
evidence effectively belie the accused appellant's allegation that KKK could not account for the money deposited in
the bank.153

Anent, KKK's alleged extra-marital affairs, the accused-appellant failed to explain how Bebs could be his wife KKK
when the letter-sender greeted Bebs a "happy birthday" on October 28 while KKK's birthday is June 23. The
accused-appellant also did not present Bebs herself, being a more competent witness to the existence of the
alleged love letters for KKK. He likewise failed, despite promise to do so, to present the original copies of such love
letters neither did he substantiate KKK's supposed extra-marital affairs by presenting witnesses who could
corroborate his claims. Further, the Court finds it unbelievable that an able man would not have the temerity to
confront his wife who has fooled around with 10 men - some of whom he has even met. The accused-appellant's
erratic statements on the witness stand are inconsistent with the theory of extra-marital romance making it
reasonable to infer that he merely made up those malicious stories as a desperate ploy to extricate himself out of
this legal quandary.

At best, the basis of the alleged illicit affairs of KKK were the accused-appellant's unfounded suspicions that hold no
evidentiary weight in law and thus incompetent to destroy KKK's credibility and that of her testimony. In sum, the
defense failed to present sufficiently convincing evidence that KKK is a mere vindictive wife who is harassing the
accused-appellant with fabricated rape charges.

Alibi

It must be stressed that in raising the irrevocable implied consent theory as defense, the accused-appellant has
essentially admitted the facts of sexual intercourse embodied in the two criminal informations for rape. This
admission is inconsistent with the defense of alibi and any discussion thereon will thus be irrelevant.

At any rate, the courts a quo correctly rejected his alibi.

Alibi is one of the weakest defenses not only because it is inherently frail and unreliable, but also because it is easy
to fabricate and difficult to check or rebut. It cannot prevail over the positive identification of the accused by
eyewitnesses who had no improper motive to testify falsely.154

For the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time of
the commission of the crime, but also that it was physically impossible for him to be at the locus delicti or within its
immediate vicinity. Physical impossibility refers not only to the geographical distance between the place where the
accused was and the place where the crime was committed when the crime transpired, but more importantly, the
facility of access between the two places.155

Even granting in arguendo that the accused-appellant had indeed attended a fiesta in Dangcagan, Bukidnon or was
hauling com with Equia on the dates of commission of the crime, the same will not easily exonerate him. The
accused-appellant failed to adduce clear and convincing evidence that it was physically impossible for him to be at
his residence in Cagayan de Oro City at the time of the commission of the crime. Dangcagan, Bukidnon can be
traversed by about four or five hours from Cagayan de Oro City, and even less by private vehicle which was
available to the accused appellant at any time.156 Thus, it was not physically impossible for him to be at the situs
criminis at the dates and times when the two rape incidents were committed.

Between the accused-appellant's alibi and denial, and the positive identification and credible testimony of the victim,
and her two daughters, the Court must give weight to the latter, especially in the absence of ill motive on their part to
falsely testify against the accused-appellant.

Conclusion
All told, the presumption of innocence endowed an accused-appellant was sufficiently overcome by KKK's clear,
straightforward, credible, and truthful declaration that on two separate occasions, he succeeded in having sexual
intercourse with her, without her consent and against her will. Evidence of overwhelming force and intimidation to
consummate rape is extant from KKK's narration as believably corroborated by the testimonies of MMM and OOO
and the physical evidence of KKK's tom panties and short pants. Based thereon, the reason and conscience of the
Court is morally certain that the accused-appellant is guilty of raping his wife on the nights of October 16 and 17,
1998.

Penalties

The Court affirms the penalty of reclusion perpetua, for each count of rape, meted upon the accused-appellant for
being in accord with Article 266-A in relation to 266-B of the RPC. Further, he shall not be eligible for parole
pursuant to Section 3 of R.A. No. 9346, which states that "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. 4180, otherwise known as the Indeterminate Sentence Law, as amended."157

The Court sustains the moral damages awarded in the amount of ₱50,000.00. Moral damages are granted to rape
victims without need of proof other than the fact of rape under the assumption that the victim suffered moral injuries
from the experience she underwent.158

The award of civil indemnity is proper; it is mandatory upon the finding that rape took place. Considering that the
1âwphi1

crime committed is simple rape, there being no qualifying circumstances attendant in its commission, the
appropriate amount is ₱50,000.00159 and not ₱75,000.00 as awarded by the RTC.

To serve as an example for public good and in order to deter a similar form of domestic violence, an award of
₱30,000.00 as exemplary damages is imperative.160

The damages awarded shall earn legal interest at the rate of six percent (6%) per annum to be reckoned from the
date of finality of this judgment until fully paid.161

A Final Note

Rape is a crime that evokes global condemnation because it is an abhorrence to a woman's value and dignity as a
human being. It respects no time, place, age, physical condition or social status. It can happen anywhere and it can
happen to anyone. Even, as shown in the present case, to a wife, inside her time-honored fortress, the family home,
committed against her by her husband who vowed to be her refuge from cruelty. The herein pronouncement is an
affirmation to wives that our rape laws provide the atonement they seek from their sexually coercive husbands.

Husbands are once again reminded that marriage is not a license to forcibly rape their wives. A husband does not
own his wife's body by reason of marriage. By marrying, she does not divest herself of the human right to an
exclusive autonomy over her own body and thus, she can lawfully opt to give or withhold her consent to marital
coitus. A husband aggrieved by his wife's unremitting refusal to engage in sexual intercourse cannot resort to
felonious force or coercion to make her yield. He can seek succor before the Family Courts that can determine
whether her refusal constitutes psychological incapacity justifying an annulment of the marriage.

Sexual intimacy is an integral part of marriage because it is the spiritual and biological communion that achieves the
marital purpose of procreation. It entails mutual love and self-giving and as such it contemplates only mutual sexual
cooperation and never sexual coercion or imposition.

The Court is aware that despite the noble intentions of the herein pronouncement, menacing personalities may use
this as a tool to harass innocent husbands. In this regard, let it be stressed that safeguards in the criminal justice
system are in place to spot and scrutinize fabricated or false marital rape complaints and any person who institutes
untrue and malicious charges will be made answerable under the pertinent provisions of the RPC and/or other laws.

WHEREFORE, all the foregoing considered, the Decision dated July 9, 2008 of the Court of Appeals in CA-G.R.
CR-HC No. 00353 is hereby AFFIRMED with MODIFICATIONS. Accused-appellant Edgar Jumawan is found
GUILTY beyond reasonable doubt of two (2) counts of RAPE and is sentenced to suffer the penalty of reclusion
perpetua for each count, without eligibility for parole. He is further ordered to pay the victim, KKK, the amounts of
PS0,000.00 as civil indemnity, ₱50,000.00 as moral damages, and ₱30,000.00 as exemplary damages, for each
count of rape. The award of damages shall earn legal interest at the rate of six percent (6%) per annum from the
finality of this judgment until fully paid.

SO ORDERED
G.R. No. 170723 March 3, 2008

GLORIA PILAR S. AGUIRRE, petitioner,

vs.
SECRETARY OF THE DEPARTMENT OF JUSTICE, MICHELINA S. AGUIRRE-OLONDRIZ, PEDRO B.
AGUIRRE, DR. JUVIDO AGATEP and DR. MARISSA B. PASCUAL, respondents.

DECISION

CHICO-NAZARIO, J.:

In this petition for review on certiorari1 under Rule 45 of the Rules of Court, as amended, petitioner Gloria Pilar S.
Aguirre (Gloria Aguirre) seeks the reversal of the 21 July 2005 Decision2 and 5 December 2005 Resolution,3 both of
the Court of Appeals in CA-G.R. SP No. 88370, entitled "Gloria Pilar S. Aguirre v. Secretary of the Department of
Justice, Michelina S. Aguirre-Olondriz, Dr. Juvido Agatep, Dra. Marissa B. Pascual, Pedro B. Aguirre and John and
Jane Does."

The Court of Appeals found no grave abuse of discretion on the part of the Secretary of the Department of Justice
(DOJ) when the latter issued the twin resolutions dated 11 February 20044 and 12 November 2004,5 respectively,
which in turn affirmed the 8 January 2003 Resolution6 of the Office of the City Prosecutor (OCP) of Quezon City.

The Assistant City Prosecutor for the OCP of Quezon City recommended the dismissal of the criminal complaint,
docketed as I.S. No. 02-12466, for violation of Articles 172 (Falsification by Private Individuals and Use of Falsified
Documents) and 262 (Mutilation), both of the Revised Penal Code, in relation to Republic Act No. 7610, otherwise
known as "Child Abuse, Exploitation and Discrimination Act," for insufficiency of evidence.

The case stemmed from a complaint filed by petitioner Gloria Aguirre against respondents Pedro B. Aguirre (Pedro
Aguirre), Michelina S. Aguirre-Olondriz (Olondriz), Dr. Juvido Agatep (Dr. Agatep), Dr. Marissa B. Pascual (Dr.
Pascual) and several John/Jane Does for falsification, mutilation and child abuse.

The antecedents of the present petition are:

Laureano "Larry" Aguirre7 used to be a charge of the Heart of Mary Villa, a child caring agency run by the Good
Shepherd Sisters and licensed by the Department of Social Work and Development (DSWD). Sometime in 1978,
respondent Pedro Aguirre; the latter's spouse, Lourdes S. Aguirre (Lourdes Aguirre); and their four daughters, who
included petitioner Gloria Aguirre and respondent Olondriz, came to know Larry, who was then just over a year old.
The Aguirres would have Larry spend a few days at their home and then return him to the orphanage thereafter. In
June 1980, Larry, then two years and nine months of age, formally became the ward of respondent Pedro Aguirre
and his spouse Lourdes Aguirre by virtue of an Affidavit of Consent to Legal Guardianship executed in their favor by
Sister Mary Concepta Bellosillo, Superior of the Heart of Mary Villa. On 19 June 1986, the Aguirre spouses'
guardianship of Larry was legalized when the Regional Trial Court (RTC), Branch 3 of Balanga, Bataan, duly
appointed them as joint co-guardians over the person and property of Larry.

As Larry was growing up, the Aguirre spouses and their children noticed that his developmental milestones were
remarkably delayed. His cognitive and physical growth did not appear normal in that "at age 3 to 4 years, Larry
could only crawl on his tummy like a frog x x x;"8 he did not utter his first word until he was three years of age; did
not speak in sentences until his sixth year; and only learned to stand up and walk after he turned five years old. At
age six, the Aguirre spouses first enrolled Larry at the Colegio de San Agustin, Dasmariñas Village, but the child
experienced significant learning difficulties there. In 1989, at age eleven, Larry was taken to specialists for
neurological and psychological evaluations. The psychological evaluation9 done on Larry revealed the latter to be
suffering from a mild mental deficiency.10 Consequent thereto, the Aguirre spouses transferred Larry to St. John Ma.
Vianney, an educational institution for special children.

In November of 2001, respondent Dr. Agatep, a urologist/surgeon, was approached concerning the intention to have
Larry, then 24 years of age, vasectomized. Prior to performing the procedure on the intended patient, respondent
Dr. Agatep required that Larry be evaluated by a psychiatrist in order to confirm and validate whether or not the
former could validly give his consent to the medical procedure on account of his mental deficiency.

In view of the required psychiatric clearance, Larry was brought to respondent Dr. Pascual, a psychiatrist, for
evaluation. In a psychiatric report dated 21 January 2002, respondent Dr. Pascual made the following
recommendation:

[T]he responsibility of decision making may be given to his parent or guardian.11

the full text of which reads –

PSYCHIATRY REPORT

21 January 2002

GENERAL DATA

LAUREANO AGUIRRE, 24 years old, male, high school graduate of St. John [Marie Vianney], was referred
for psychiatric evaluation to determine competency to give consent for vasectomy.

CLINICAL SUMMARY

Larry was adopted at age 3 from an orphanage and prenatal history is not known to the adoptive family
except that abortion was attempted. Developmental milestones were noted to be delayed. He started to walk
and speak in single word at around age 5. He was enrolled in Colegio de San Agustin at age 6 where he
showed significant learning difficulties that he had to repeat 1st and 4th grades. A consult was done in 1989
when he was 11 years old. Neurological findings and EEG results were not normal and he was given
Tecretol and Encephabol by his neurologist. Psychological evaluation revealed mild to moderate mental
retardation, special education training was advised and thus, he was transferred to St. John Marie Vianney.
He finished his elementary and secondary education in the said school. He was later enrolled in a vocational
course at Don Bosco which he was unable to continue. There has been no reported behavioral problems in
school and he gets along relatively well with his teachers and some of his classmates.

Larry grew up with a very supportive adoptive family. He is the youngest in the family of four sisters.
Currently, his adoptive parents are already old and have medical problem and thus, they could no longer
monitor and take care of him like before. His adoptive mother has Bipolar Mood Disorder and used to
physically maltreat him. A year ago, he had an episode of dizziness, vomiting and headaches after he was
hit by his adoptive mother. Consult was done in Makati Medical Center and several tests were done, results
of which were consistent with his developmental problem. There was no evidence of acute insults. The
family subsequently decided that he should stay with one of his sisters to avoid similar incident and the
possibility that he would retaliate although he has never hurt anybody. There has been no episode of violent
outburst or aggressive behavior. He would often keep to himself when sad, angry or frustrated.

He is currently employed in the company of his sister and given assignment to do some photocopying,
usually in the mornings. He enjoys playing billiards and basketball with his nephews and, he spends most of
his leisure time watching TV and listening to music. He could perform activities of daily living without
assistance except that he still needs supervision in taking a bath. He cannot prepare his own meal and
never allowed to go out and run errands alone. He does not have friends and it is only his adoptive family
whom he has significant relationships. He claims that he once had a girlfriend when he was in high school
who was more like a best friend to him. He never had sexual relations. He has learned to smoke and drink
alcohol few years ago through his cousins and the drivers. There is no history of abuse of alcohol or any
prohibited substances.

MEDICAL STATUS EXAMINATION

The applicant was appropriately dressed. He was cooperative and he had intermittent eye contact. Speech
was spontaneous, soft, and relevant. He responded to questions in single words or simple sentences. He
was anxious specially at the start of the interview, with full affect appropriate to mood and thought content.
There was no apparent thought or perceptual disturbance. No suicidal/homicidal thoughts elicited. He was
oriented to time, place and person. He has intact remote and recent memory. He could do simple
calculation. He could write his name and read simple words. His human figure was comparable to a 7-8 year
old. He demonstrated fair judgment and poor insight. He had fair impulse control.

PSYCHOLOGICAL TESTS

Psychological tests done on March 6, 1990 (Dr. Lourdes Ledesma) and on August 4, 2000 (Dr. Ma. Teresa
Gustilo-Villaosor) consistently revealed mild to moderate mental deficiency.

SIGNIFICANT LABORATORY EXAMS RESULTS

CT scan done 09 January 2001 showed nonspecific right deep parietal subcortical malacia. No localized
mass lesion in the brain.

MRI done on 10 January 2001 showed bilateral parietal x x x volume loss, encephalomalacia, gliosis and
ulegyria consistent with sequela of postnatal or neonatal infarcts. Ex-vacuo dilatation of the atria of lateral
ventricles associated thinned posterior half of the corpus callosum.

ASSESSMENT AND RECOMMENDATION

Axis I None

Axis II Mental Retardation, mild to moderate type

Axis III None

Axis IV None at present

Axis V Current GAF = 50-60

Larry's mental deficiency could be associated with possible perinatal insults, which is consistent with the
neuroimaging findings. Mental retardation associated with neurological problems usually has poorer
prognosis. Larry is very much dependent on his family for his needs, adaptive functioning, direction and in
making major life decisions. At his capacity, he may never understand the nature, the foreseeable risks and
benefits, and consequences of the procedure (vasectomy) that his family wants for his protection. Thus, the
responsibility of decision making may be given to his parent or guardian.

Marissa B. Pascual, M.D.

Psychiatrist12

Considering the above recommendation, respondent Pedro Aguirre's written consent was deemed sufficient in order
to proceed with the conduct of the vasectomy. Hence, on 31 January 2002, respondent Dr. Agatep performed a
bilateral vasectomy on Larry.

On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro Aguirre's eldest child, instituted a criminal complaint
for the violation of the Revised Penal Code, particularly Articles 172 and 262, both in relation to Republic Act No.
7610 against respondents Pedro Aguirre, Olondriz, Dr. Agatep, Dr. Pascual and several John/Jane Does before the
Office of the City Prosecutor of Quezon City.

The Complaint Affidavit,13 docketed as I.S. No. 02-12466, contained the following allegations:

2. x x x Dr. Agatep and Dra. Pascual were (sic) medical practitioners specializing in urology and psychiatry
respectively; while respondent Pedro B. Aguirre is my father; Michelina S. Aguirre-Olondriz is my sister, and
the victim Laureano "Larry" Aguirre xxx is my common law brother. JOHN and JANE DOES were the
persons who, acting upon the apparent instructions of respondents Michelina Aguirre-Olondriz and/or Pedro
B. Aguirre, actually scouted, prospected, facilitated, solicited and/or procured the medical services of
respondents Dra. Pascual and Dr. Agatep vis-à-vis the intended mutilation via bilateral vasectomy of my
common law brother Larry Aguirre subject hereof.

xxxx

4. Sometime in March 2002, however, the Heart of Mary Villa of the Good Shepherd Sisters was furnished a
copy of respondent Dra. Pascual's Psychiatry Report dated 21 January 2004 by the "DSWD," in which my
common law brother "Larry" was falsely and maliciously declared incompetent and incapable of purportedly
giving his own consent to the MUTILATION VIA BILATERAL VASECTOMY intended to be performed on
him by all the respondents.

xxxx

6. Based on the foregoing charade and false pretenses invariably committed by all of the respondents in
conspiracy with each other, on 31 January 2002, my common law brother Larry Aguirre, although of legal
age but conspiratorially caused to be declared by respondents to be "mentally deficient" and incompetent to
give consent to his BILATERAL VASECTOMY, was then intentionally, unlawfully, maliciously, feloniously
and/or criminally placed thereafter under surgery for MUTILATION VIA "BILATERAL VASECTOMY" x x x,
EVEN WITHOUT ANY AUTHORIZATION ORDER from the GUARDIANSHIP COURT, nor personal consent
of Larry Aguirre himself.

In addition to the above, the complaint included therein an allegation that –

v. x x x without a PRIOR medical examination, professional interview of nor verification and consultation with
my mother, Lourdes Sabino-Aguirre, respondent Dra. Pascual baselessly, fraudulently and with obvious
intent to defame and malign her reputation and honor, and worse, that of our Sabido family, falsely
concluded and diagnosed, via her falsified Psychiatry Report, that my mother Lourdes Sabido-Aguirre
purportedly suffers from "BIPOLAR MOOD DISORDER" x x x.

To answer petitioner Gloria Aguirre's accusations against them, respondents Pedro Aguirre, Olondriz, Dr. Agatep
and Dr. Pascual submitted their respective Counter-Affidavits.
In her defense,14 respondent Olondriz denied that she "prospected, scouted, facilitated, solicited and/or procured
any false statement, mutilated or abused" her common-law brother, Larry Aguirre. Further, she countered that:

3. x x x While I am aware and admit that Larry went through a vasectomy procedure, there is nothing in the
Complaint which explains how the vasectomy amounts to a mutilation.

xxxx

5. In any case, as I did not perform the vasectomy, I can state with complete confidence that I did not
participate in any way in the alleged mutilation.

6. Neither did I procure or solicit the services of the physician who performed the vasectomy, Dr. Juvido
Agatep x x x. It was my father, Pedro Aguirre, Larry's guardian, who obtained his services. I merely acted
upon his instructions and accompanied my brother to the physician, respondents Dra. Marissa B. Pascual x
x x.

xxxx

10. Neither does the Complaint explain in what manner the Complainant is authorized or has any standing to
declare that Larry's consent was not obtained. Complainant is not the guardian or relative of Larry. While
she argues that Larry's consent should have been obtained the Complaint does not dispute the psychiatrist's
findings about Larry's inability to give consent.

xxxx

13. x x x the Complaint does not even state what alleged participation was falsified or the portion of the
psychiatric report that allegedly states that someone participated when in fact that person did not so
participate.

xxxx

15. Again, I had no participation in the preparation of the report of Dr. Pascual x x x.

xxxx

17. x x x the Complaint does not dispute that he (Larry) is mentally deficient or incompetent to give consent.

xxxx

19. x x x I verified that the effect of a vasectomy operation was explained to him (Larry) by both respondent
doctors.

20. x x x I accompanied Larry and obeyed my father on the belief that my father continues to be the legal
guardian of Larry. I know of no one else who asserts to be his legal guardian x x x.15

Alleging the same statement of facts and defenses, respondent Pedro Aguirre argues against his complicity in the
crime of mutilation as charged and asserts that:

5. In any case, as I did not perform the vasectomy, I can state with complete confidence that I did not
participate in any way in the alleged mutilation.16

Nevertheless, he maintains that the vasectomy performed on Larry does not in any way amount to mutilation, as the
latter's reproductive organ is still completely intact.17 In any case, respondent Pedro Aguirre explains that the
procedure performed is reversible through another procedure called Vasovasostomy, to wit:

8. I understand that vasectomy is reversible through a procedure called Vasovasostomy. I can also state
with confidence that the procedure enables men who have undergone a vasectomy to sire a child. Hence,
no permanent damage was caused by the procedure.

Respondent Pedro Aguirre challenges the charge of falsification in the complaint, to wit:

14. x x x I did not make it appear that any person participated in any act or proceeding when that person did
not in fact participate x x x.

xxxx
16. x x x I had no participation in the preparation of the report of Dra. Pascual. She arrived at her report
independently, using her own professional judgment x x x.

xxxx

31. What I cannot understand about Petita's Complaint is how Larry is argued to be legally a child under the
definition of one law but nonetheless and simultaneously argued to be capacitated to give his consent as
fully as an adult.18

Respondent Pedro Aguirre further clarifies that co-guardianship over Larry had been granted to himself and his wife,
Lourdes Aguirre, way back on 19 June 1986 by the Regional Trial Court, Branch 3 of Balanga, Bataan. Respondent
Pedro Aguirre contends that being one of the legal guardians, consequently, parental authority over Larry is vested
in him. But assuming for the sake of argument that Larry does have the capacity to make the decision concerning
his vasectomy, respondent Pedro Aguirre argues that petitioner Gloria Aguirre has no legal personality to institute
the subject criminal complaint, for only Larry would have the right to do so.

Just as the two preceding respondents did, respondent Dr. Agatep also disputed the allegations of facts stated in
the Complaint. Adopting the allegations of his co-respondents insofar as they were material to the charges against
him, he vehemently denied failing to inform Larry of the intended procedure. In his counter-statement of facts he
averred that:

(b) x x x I scheduled Larry for consultative interview x x x wherein I painstakingly explained what vasectomy
is and the consequences thereof; but finding signs of mental deficiency, x x x I advised his relatives and his
nurse who accompanied him to have Larry examined by a psychiatrist who could properly determine
whether or not Larry x x x can really give his consent, thus I required them to secure first a psychiatric
evaluation and clearance prior to the contemplated procedure.

(c) On January 21, 2002, I was furnished a copy of a psychiatric report prepared by Dr. Marissa Pascual x x
x. In her said report, Dr. Pascual found Larry to suffer from "mental retardation, mild to moderate type" and
further stated that "at his capacity, he may never understand the nature, the foreseeable risks and benefits
and consequences of the procedure (vasectomy) x x x, thus the responsibility of decision making may be
given to his parent or guardian x x x."

(d) x x x I was likewise furnished a copy of an affidavit executed by Pedro Aguirre stating that he was the
legal guardian of Larry x x x Pedro Aguirre gave his consent to vasectomize Larry x x x.

(e) Only then, specifically January 31, 2002, vasectomy was performed with utmost care and diligence.19

In defense against the charge of falsification and mutilation, respondent Dr. Agatep argued that subject complaint
should be dismissed for the following reasons:

1. The complainant has no legal personality to file this case. As mentioned above, she is only a common law
sister of Larry who has a legal guardian in the person of Pedro Aguirre, one of the herein respondents x x x.

2. x x x [t]he allegations in the complaint clearly centers on the condition of complainant's mother, Lourdes
Aguirre, her reputation, and miserably fails to implicate the degree of participation of herein respondent. x x
x

xxxx

(b) Falsification. x x x I strongly aver that this felony does not apply to me since it clearly gives reference to
co-respondent, Dr. Marissa Pascual's Psychiatry Report, dated January 21, 2002, in relation with her field of
profession, an expert opinion. I do not have any participation in the preparation of said report, x x x neither
did I utilized (sic) the same in any proceedings to the damage to another. x x x I also deny using a falsified
document x x x.

(c) Mutilation. x x x Vasectomy does not in anyway equate to castration and what is touched in vasectomy is
not considered an organ in the context of law and medicine, it is quite remote from the penis x x x.

(d) Child Abuse. x x x the complaint-affidavit is very vague in specifying the applicability of said law. It merely
avers that Laureano "Larry" Aguirre is a child, and alleges his father, Pedro Aguirre, has parental authority
over him x x x.20

Similarly, respondent Dr. Pascual denied the criminal charges of falsification and mutilation imputed to her. She
stands by the contents of the assailed Psychiatric Report, justifying it thus:

x x x My opinion of Larry Aguirre's mental status was based on my own personal observations, his
responses during my interview of him, the results of the two (2) psychological tests conducted by clinical
psychologists, the results of laboratory tests, including a CT Scan and MRI, and his personal and family
history which I obtained from his sister, Michelina Aguirre-Olondriz x x x.

5. x x x the reference in my report concerning Mrs. Lourdes Aguirre is not a statement of my opinion of Mrs.
Aguirre's mental status, x x x. Rather, it is part of the patient's personal and family history as conveyed to me
by Mrs. Aguirre-Olondriz.

6. x x x An expression of my opinion, especially of an expert opinion, cannot give rise to a charge for
falsification. A contrary opinion by another expert only means that the experts differ, and does not
necessarily reflect on the truth or falsity of either opinion x x x.

7. x x x I never stated that I examined Mrs. Aguirre, because I never did x x x.

8. I had no participation in the surgery performed on Larry Aguirre except to render an opinion on his
capacity to give informed consent to the vasectomy x x x.

9. Without admitting the merits of the complaint, I submit that complainants are not the proper persons to
subscribe to the same as they are not the offended party, peace officer or other public officer charged with
the enforcement of the law violated x x x.21

The Assistant City Prosecutor held that the circumstances attendant to the case did not amount to the crime of
falsification. He held that –

[T]he claim of the complainant that the Psychiatric Report was falsified, because consent was not given by
Larry Aguirre to the vasectomy and/or he was not consulted on said operation does not constitute
falsification. It would have been different if it was stated in the report that consent was obtained from Larry
Aguirre or that it was written therein that he was consulted on the vasectomy, because that would mean that
it was made to appear in the report that Larry Aguirre participated in the act or proceeding by giving his
consent or was consulted on the matter when in truth and in fact, he did not participate. Or if not, the entry
would have been an untruthful statement. But that is not the case. Precisely (sic) the report was made to
determine whether Larry Aguirre could give his consent to his intended vasectomy. Be that as it may, the
matter of Larry's consent having obtained or not may nor be an issue after all, because complainant's (sic)
herself alleged that Larry's mental condition is that of a child, who can not give consent. Based on the
foregoing consideration, no falsification can be established under the circumstances.22

Even the statement in the Psychiatric Report of respondent Dr. Pascual that Lourdes Aguirre had Bipolar Mood
Disorder cannot be considered falsification since –

The report did not state that Lourdes Aguirre was in fact personally interviewed by respondent Dr. Pascual
and that the latter concluded that Lourdes Aguirre has Bipolar Mood Disorder. The report merely quoted
other sources of information with respect to the condition of Lourdes Aguirre, in the same manner that the
fact that Lourdes Aguirre was physically abusing Larry Aguirre was also not of Dra. Pascual personal
knowledge. But the fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her
report does not mean that she committed falsification in the process. Her sources may be wrong and may
affect the veracity of her report, but for as long as she has not alleged therein that she personally diagnosed
Lourdes Aguirre, which allegation would not then be true, she cannot be charged of falsification. Therefore, it
goes without saying that if the author of the report is not guilty, then with more reason the other respondents
are not liable.23

Respecting the charge of mutilation, the Assistant City Prosecutor also held that the facts alleged did not amount to
the crime of mutilation as defined and penalized under Article 262 of the Revised Penal Code, i.e., "[t]he vasectomy
operation did not in any way deprived (sic) Larry of his reproductive organ, which is still very much part of his
physical self." He ratiocinated that:

While the operation renders him the inability (sic) to procreate, the operation is reversible and therefore,
cannot be the permanent damage contemplated under Article 262 of the Revised Penal Code.24

The Assistant City Prosecutor,25 in a Resolution26 dated 8 January 2003, found no probable cause to hold
respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual liable for the complaint of falsification and
mutilation, more specifically, the violation of Articles 172 and 262 of the Revised Penal Code, in relation to Republic
Act No. 7610. Accordingly, the Assistant City Prosecutor recommended the dismissal of petitioner Gloria Aguirre's
complaint for insufficiency of evidence. The dispositive portion of the resolution reads:

WHEREFORE, it is recommended that the above-entitled case be dismissed for insufficiency of evidence.27

On 18 February 2003, petitioner Gloria Aguirre appealed the foregoing resolution to the Secretary of the DOJ by
means of a Petition for Review.28
In a Resolution dated 11 February 2004, Chief State Prosecutor Jovencito R. Zuño, for the Secretary of the DOJ,
dismissed the petition. In resolving said appeal, the Chief State Prosecutor held that:

Under Section 12, in relation to Section 7, of Department Circular No. 70 dated July 3, 2000, the Secretary
of Justice may, motu proprio, dismiss outright the petition if there is no showing of any reversible error in the
questioned resolution or finds the same to be patently without merit.

We carefully examined the petition and its attachments and found no error that would justify a reversal of the
assailed resolution which is in accord with the law and evidenced (sic) on the matter.29

Petitioner Gloria Aguirre's Motion for Reconsideration was likewise denied with finality by the DOJ in another
Resolution dated 12 November 2004.

Resolute in her belief, petitioner Gloria Aguirre went to the Court of Appeals by means of a Petition for Certiorari,
Prohibition and Mandamus under Rule 65 of the Rules of Court, as amended.

On 21 July 2005, the Court of Appeals promulgated its Decision dismissing petitioner Gloria Aguirre's recourse for
lack of merit.

The fallo of the assailed decision reads:

WHEREFORE, premises considered, the present petition is hereby DENIED DUE COURSE and accordingly
DISMISSED for lack of merit. Consequently, the assailed Resolutions dated February 11, 2004 and
November 12, 2004 of the Secretary of Justice in I.S. No. 02-12466 are hereby AFFIRMED.30

Petitioner Gloria Aguirre's motion for reconsideration proved futile as it was denied by the appellate court in a
Resolution dated 5 December 2005.

Hence, the present petition filed under Rule 45 of the Rules of Court, as amended, premised on the following
arguments:

I.

THE COURT OF APPEALS COMMITTED SERIOUS, GRAVE AND REVERSIBLE ERRORS OF LAW
WHEN IT CONCLUDED, BASED PURPORTEDLY ON THE INTERNET WHICH RUNS AMUCK WITH OUR
SYSTEM OF THE RULE OF LAW AND THE EVIDENCE ON RECORD, THAT BILATERAL VASECTOMY
IS PURPORTEDLY 100% REVERSIBLE BY A FUTURE MEDICAL PROCEDURE HENCE NOT
AMOUNTING TO MUTILATION, X X X; AND

xxxx

II.

WORSE, THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS AND REVERSIBLE ERRORS OF
LAW WHEN IT REFUSED TO DIRECT THE INDICTMENT OF THE PRIVATE RESPONDENTS FOR
MUTILATION AND FALSIFICATION DESPITE THE EXISTENCE OF SUFFICIENT PROBABLE CAUSE
THEREFOR X X X.31

The foregoing issues notwithstanding, the more proper issue for this Court's consideration is, given the facts of the
case, whether or not the Court of Appeals erred in ruling that the DOJ did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction when the latter affirmed the public prosecutor's finding of lack of probable
cause for respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual to stand trial for the criminal complaints
of falsification and mutilation in relation to Republic Act No. 7610.

In ruling that the DOJ did not commit grave abuse of discretion amounting to lack or excess of jurisdiction, the Court
of Appeals explained that:

Evidently, the controversy lies in the permanency of sterilization as a result of a vasectomy operation, and
the chances of restoring fertility with a reversal surgery x x x.

We sustain the DOJ in ruling that the bilateral vasectomy performed on Larry does not constitute mutilation
even if intentionally and purposely done to prevent him from siring a child.

xxxx

Sterilization is to be distinguished from castration: in the latter act the reproductive capacity is permanently
removed or damaged.32
It then concluded that:

The matter of legal liability, other than criminal, which private respondents may have incurred for the alleged
absence of a valid consent to the vasectomy performed on Larry, is certainly beyond the province of this
certiorari petition. Out task is confined to the issue of whether or not the Secretary of Justice and the Office
of the City Prosecutor of Quezon City committed grave abuse of discretion in their determining the existence
or absence of probable cause for filing criminal cases for falsification and mutilation under Articles 172 (2)
and 262 of the Revised Penal Code.33

Petitioner Gloria Aguirre, however, contends that the Court of Appeals and the DOJ failed to appreciate several
important facts: 1) that bilateral vasectomy conducted on petitioner's brother, Larry Aguirre, was admitted34; 2) that
the procedure caused the perpetual destruction of Larry's reproductive organs of generation or conception;35 3) that
the bilateral vasectomy was intentional and deliberate to deprive Larry forever of his reproductive organ and his
capacity to procreate; and 4) that respondents, "in conspiracy with one another, made not only one but two (2)
untruthful statements, and not mere inaccuracies when they made it appear in the psychiatry report"36 that a) Larry's
consent was obtained or at the very least that the latter was informed of the intended vasectomy; and b) that
Lourdes Aguirre was likewise interviewed and evaluated. Paradoxically, however, petitioner Gloria Aguirre does not
in any way state that she, instead of respondent Pedro Aguirre, has guardianship over the person of Larry. She only
insists that respondents should have obtained Larry's consent prior to the conduct of the bilateral vasectomy.

In contrast, the Office of the Solicitor General (OSG), for public respondent DOJ, argues that "the conduct of
preliminary investigation to determine the existence of probable cause for the purpose of filing (an) information is the
function of the public prosecutor."37 More importantly, "the element[s] of castration or mutilation of an organ
necessary for generation is completely absent as he was not deprived of any organ necessary for reproduction,
much less the destruction of such organ."38

Likewise, in support of the decision of the Court of Appeals, respondents Pedro Aguirre and Olondriz assert that,
fundamentally, petitioner Gloria Aguirre has no standing to file the complaint, as she has not shown any injury to her
person or asserted any relationship with Larry other than being his "common law sister"; further, that she cannot
prosecute the present case, as she has not been authorized by law to file said complaint, not being the offended
party, a peace officer or a public officer charged with the enforcement of the law. Accordingly, respondents Pedro
Aguirre and Olondriz posit that they, together with the other respondents Dr. Agatep and Dr. Pascual, may not be
charged with, prosecuted for and ultimately convicted of: 1) "mutilation x x x since the bilateral vasectomy conducted
on Larry does not involve castration or amputation of an organ necessary for reproduction as the twin elements of
the crime of mutilation x x x are absent"39; and 2) "falsification x x x since the acts allegedly constituting falsification
involve matters of medical opinion and not matters of fact,"40 and that petitioner Gloria Aguirre failed to prove
damage to herself or to any other person.

Respondent Dr. Agatep, in the same vein, stresses that vasectomy is not mutilation. He elucidates that vasectomy is
merely the "excision of the vas deferens, the duct in testis which transport semen"41; that it is the penis and the testis
that make up the male reproductive organ and not the vas deferens; and additionally argues that for the crime of
mutilation to be accomplished, Article 262 of the Revised Penal Code necessitates that there be intentional total or
partial deprivation of some essential organ for reproduction. Tubes, seminal ducts, vas deferens or prostatic urethra
not being organs, respondent Dr. Agatep concludes, therefore, that vasectomy does not correspond to mutilation.

Anent the charge of falsification of a private document, respondent Dr. Agatep asseverates that he never took part
in disclosing any information, data or facts as contained in the contentious Psychiatric Report.

For her part, respondent Dr. Pascual insists that the assailed Psychiatry Report was the result of her independent
exercise of professional judgment. "Rightly or wrongly, (she) diagnosed Larry Aguirre to be incapable of giving
consent, based on interviews made by the psychiatrist on Larry Aguirre and persons who interacted with him."42 And
supposing that said report is flawed, it is, at most, an erroneous medical diagnosis.

The petition has no merit.

Probable cause has been defined as the existence of such facts and circumstances as would excite belief in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of
the crime for which he was prosecuted.43 The term does not mean "actual and positive cause" nor does it import
absolute certainty.44 It is merely based on opinion and reasonable belief;45 that is, the belief that the act or omission
complained of constitutes the offense charged. A finding of probable cause merely binds over the suspect to stand
trial. It is not a pronouncement of guilt.46

The executive department of the government is accountable for the prosecution of crimes, its principal obligation
being the faithful execution of the laws of the land. A necessary component of the power to execute the laws is the
right to prosecute their violators,47 the responsibility of which is thrust upon the DOJ. Hence, the determination of
whether or not probable cause exists to warrant the prosecution in court of an accused is consigned and entrusted
to the DOJ. And by the nature of his office, a public prosecutor is under no compulsion to file a particular criminal
information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence
at hand points to a different conclusion.
Put simply, public prosecutors under the DOJ have a wide range of discretion, the discretion of whether, what and
whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by (public)
prosecutors.48 And this Court has consistently adhered to the policy of non-interference in the conduct of preliminary
investigations, and to leave to the investigating prosecutor sufficient latitude of discretion in the determination of
what constitutes sufficient evidence as will establish probable cause for the filing of an information against the
supposed offender.49

But this is not to discount the possibility of the commission of abuses on the part of the prosecutor. It is entirely
possible that the investigating prosecutor may erroneously exercise the discretion lodged in him by law. This,
however, does not render his act amenable to correction and annulment by the extraordinary remedy of certiorari,
absent any showing of grave abuse of discretion amounting to excess of jurisdiction.50

Prescinding from the above, the court's duty in an appropriate case, therefore, is confined to a determination of
whether the assailed executive determination of probable cause was done without or in excess of jurisdiction
resulting from a grave abuse of discretion. For courts of law to grant the extraordinary writ of certiorari, so as to
justify the reversal of the finding of whether or not there exists probable cause to file an information, the one seeking
the writ must be able to establish that the investigating prosecutor exercised his power in an arbitrary and despotic
manner by reason of passion or personal hostility, and it must be patent and gross as would amount to an evasion
or to a unilateral refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of discretion is
not enough.51 Excess of jurisdiction signifies that he had jurisdiction over the case but has transcended the same or
acted without authority.52

Applying the foregoing disquisition to the present petition, the reasons of the Assistant City Prosecutor in dismissing
the criminal complaints for falsification and mutilation, as affirmed by the DOJ, is determinative of whether or not he
committed grave abuse of discretion amounting to lack or excess of jurisdiction.

In ruling the way he did – that no probable cause for falsification and mutilation exists - the Assistant City Prosecutor
deliberated on the factual and legal milieu of the case. He found that there was no sufficient evidence to establish
a prima facie case for the crimes complained of as defined and punished under Articles 172, paragraph 2, and 262
of the Revised Penal Code in relation to Republic Act No. 7610, respectively. Concerning the crime of falsification of
a private document, the Assistant City Prosecutor reasoned that the circumstances attendant to the case did not
amount to the crime complained of, that is, the lack of consent by Larry Aguirre before he was vasectomized; or the
fact that the latter was not consulted. The lack of the two preceding attendant facts do not in any way amount to
falsification, absent the contention that it was made to appear in the assailed report that said consent was obtained.
That would have been an untruthful statement. Neither does the fact that the Psychiatric Report state that Lourdes
Aguirre has Bipolar Mood Disorder by the same token amount to falsification because said report does not put
forward that such finding arose after an examination of the concerned patient. Apropos the charge of mutilation, he
reasoned that though the vasectomy rendered Larry unable to procreate, it was not the permanent damage
contemplated under the pertinent provision of the penal code.

We agree. Grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the DOJ and the
Assistant City Prosecutor was not shown in the present case.

In the present petition, respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual are charged with violating
Articles 172 and 262 of the Revised Penal Code, in relation to Republic Act No. 7610. Article 172, paragraph 2 of
the Revised Penal Code, defines the crime of falsification of a private document, viz –

Art. 172. Falsification by private individuals and use of falsified documents. – The penalty of prision
correccional in its medium and maximum periods and a fine of not more than 5,000 pesos shall be imposed
upon:

xxxx

2. Any person who, to the damage of a third party, or with the intent to cause such damage, shall in any
private document commit any of the acts of falsification enumerated in the next preceding article.

Petitioner Gloria Aguirre charges respondents with falsification of a private document for conspiring with one another
in keeping Larry "in the dark about the foregoing (vasectomy) as the same was concealed from him by the
respondents x x x,"53 as well as for falsely concluding and diagnosing Lourdes Aguirre to be suffering from Bipolar
Mood Disorder.
A scrutiny, however, of Article 171 of the Revised Penal Code which defines the acts constitutive of falsification, that
is –

Art. 171. x x x shall falsify a document by committing any of the following acts:

1. Counterfeiting or imitating any handwriting, signature, or rubric;

2. Causing it to appear that persons have participated in any act or proceeding when they did not in
fact so participate;

3. Attributing to persons who have participated in an act or proceeding statements other than those
in fact made by them;

4. Making untruthful statements in a narration of facts;

5. Altering true dates;

6. Making any alteration or intercalation in a genuine document which changes its meaning;

7. Issuing in an authenticated form a document purporting to be a copy of an original document

when no such original exists, or including in such copy a statement contrary to, or different from, that
of the genuine original; or

8. Intercalating any instrument or note relative to the issuance thereof in a protocol, registry, or
official book.

vis-à-vis the much criticized Psychiatric Report, shows that the acts complained of do not in any manner, by
whatever stretch of the imagination, fall under any of the eight (8) enumerated acts constituting the offense of
falsification.

In order to properly address the issue presented by petitioner Gloria Aguirre, it is necessary that we discuss the
elements of the crime of falsification of private document under the Revised Penal Code, a crime which all the
respondents have been accused of perpetrating. The elements of said crime under paragraph 2 of Article 172 of our
penal code are as follows: 1) that the offender committed any acts of falsification, except those in par. 7,
enumerated in Article 171; 2) that the falsification was committed in any private document; and 3) that the
falsification caused damage to a third party or at least the falsification was committed with intent to cause such
damage. Under Article 171, paragraph 2, a person may commit falsification of a private document by causing it to
appear in a document that a person or persons participated in an act or proceeding, when such person or persons
did not in fact so participate in the act or proceeding. On the other hand, falsification under par. 3 of the same article
is perpetrated by a person or persons who, participating in an act or proceeding, made statements in that act or
proceeding and the offender, in making a document, attributed to such person or persons statements other than
those in fact made by such person or persons. And the crime defined under paragraph 4 thereof is committed when
1) the offender makes in a document statements in a narration of facts; 2) he has a legal obligation to disclose the
truth of the facts narrated by him; 3) the facts narrated by the offender are absolutely false; and 4) the perversion of
truth in the narration of facts was made with the wrongful intent of injuring a third person.

Applying the above-stated elements of the crime to the case at bar, in order that respondent Dr. Pascual, and the
rest acting in conspiracy with her, to have committed the crime of falsification under par. 3 and 4 of Article 171 of the
Revised Penal Code, it is essential that that there be prima facie evidence to show that she had caused it to appear
that Larry gave his consent to be vasectomized or at the very least, that the proposed medical procedure was
explained to Larry. But in the assailed report, no such thing was done. Lest it be forgotten, the reason for having
Larry psychiatrically evaluated was precisely to ascertain whether or not he can validly consent with impunity to the
proposed vasectomy, and not to obtain his consent to it or to oblige respondent Dr. Pascual to explain to him what
the import of the medical procedure was. Further, that Larry's consent to be vasectomized was not obtained by the
psychiatrist was of no moment, because nowhere is it stated in said report that such assent was obtained. At any
rate, petitioner Gloria Aguirre contradicts her very own allegations when she persists in the contention that Larry has
the mental age of a child; hence, he was legally incapable of validly consenting to the procedure.

In the matter of the supposed incorrect diagnosis of Lourdes Aguirre, with regard to paragraph 2 of Article 171 of the
Revised Penal Code, we quote with approval the succinct statements of the Assistant City Prosecutor:

[T]he fact that Dra. Pascual cited finding, which is not of her own personal knowledge in her report does not
mean that she committed falsification in the process. Her sources may be wrong and may affect the veracity
of her report, but for as long as she has not alleged therein that she personally diagnosed Lourdes Aguirre,
which allegation would not then be true, she cannot be charged of falsification. Therefore, it goes without
saying that if the author of the report is not guilty, then with more reason the other respondents are not
liable.54
As to the charge of mutilation, Art. 262 of the Revised Penal Code defines the crime as –

Art. 262. Mutilation. – The penalty of reclusion temporal to reclusion perpetua shall be imposed upon any
person who shall intentionally mutilate another by depriving him, either totally or partially, of some essential
organ for reproduction.

Any other intentional mutilation shall be punished by prision mayor in its medium and maximum periods.

A straightforward scrutiny of the above provision shows that the elements55 of mutilation under the first paragraph of
Art. 262 of the Revised Penal Code to be 1) that there be a castration, that is, mutilation of organs necessary for
generation; and 2) that the mutilation is caused purposely and deliberately, that is, to deprive the offended party of
some essential organ for reproduction. According to the public prosecutor, the facts alleged did not amount to the
crime of mutilation as defined and penalized above, i.e., "[t]he vasectomy operation did not in any way deprived (sic)
Larry of his reproductive organ, which is still very much part of his physical self." Petitioner Gloria Aguirre, however,
would want this Court to make a ruling that bilateral vasectomy constitutes the crime of mutilation.

This we cannot do, for such an interpretation would be contrary to the intentions of the framers of our penal code.

A fitting riposte to the issue at hand lies in United States v. Esparcia,56 in which this Court had the occasion to shed
light on the implication of the term mutilation. Therein we said that:

The sole point which it is desirable to discuss is whether or not the crime committed is that defined and
penalized by article 414 of the Penal Code. The English translation of this article reads: "Any person who
shall intentionally castrate another shall suffer a penalty ranging from reclusion temporal to reclusion
perpetua." The Spanish text, which should govern, uses the word "castrare," inadequately translated into
English as "castrate." The word "capar," which is synonymous of "castrar," is defined in the Royal Academic
Dictionary as the destruction of the organs of generation or conception. Clearly it is the intention of the law to
punish any person who shall intentionally deprived another of any organ necessary for reproduction. An
applicable construction is that of Viada in the following language:

"At the head of these crimes, according to their order of gravity, is the mutilation known by the name of
'castration' which consists of the amputation of whatever organ is necessary for generation. The law could
not fail to punish with the utmost severity such a crime, which, although not destroying life, deprives a
person of the means to transmit it. But bear in mind that according to this article in order for 'castration' to
exist, it is indispensable that the 'castration' be made purposely. The law does not look only to the result but
also to the intention of the act. Consequently, if by reason of an injury or attack, a person is deprived of the
organs of generation, the act, although voluntary, not being intentional to that end, it would not come under
the provisions of this article, but under No. 2 of article 431." (Viada, Codigo Penal, vol. 3, p. 70. See to same
effect, 4 Groizard, Codigo Penal, p. 525.)

Thus, the question is, does vasectomy deprive a man, totally or partially, of some essential organ of reproduction?
We answer in the negative.

In the male sterilization procedure of vasectomy, the tubular passage, called the vas deferens, through which the
sperm (cells) are transported from the testicle to the urethra where they combine with the seminal fluid to form the
ejaculant, is divided and the cut ends merely tied.57 That part, which is cut, that is, the vas deferens, is merely a
passageway that is part of the duct system of the male reproductive organs. The vas deferens is not an organ, i.e., a
highly organized unit of structure, having a defined function in a multicellular organism and consisting of a range of
tissues.58 Be that as it may, even assuming arguendo that the tubular passage can be considered an organ, the
cutting of the vas deferens does not divest or deny a man of any essential organ of reproduction for the simple
reason that it does not entail the taking away of a part or portion of the male reproductive system. The cut ends,
after they have been tied, are then dropped back into the incision.59

Though undeniably, vasectomy denies a man his power of reproduction, such procedure does not deprive him,
"either totally or partially, of some essential organ for reproduction." Notably, the ordinary usage of the term
"mutilation" is the deprivation of a limb or essential part (of the body),60 with the operative expression being
"deprivation." In the same manner, the word "castration" is defined as the removal of the testies or ovaries.61 Such
being the case in this present petition, the bilateral vasectomy done on Larry could not have amounted to the crime
of mutilation as defined and punished under Article 262, paragraph 1, of the Revised Penal Code. And no criminal
culpability could be foisted on to respondent Dr. Agatep, the urologist who performed the procedure, much less the
other respondents. Thus, we find sufficient evidence to explain why the Assistant City Prosecutor and the DOJ ruled
the way they did. Verily, We agree with the Court of Appeals that the writ of certiorari is unavailing; hence, should
not be issued.

It is once more apropos to pointedly apply the Court's general policy of non-interference in the conduct of
preliminary investigations. As it has been oft said, the Supreme Court cannot order the prosecution of a person
against whom the prosecutor does not find sufficient evidence to support at least a prima facie case.62 The courts try
and absolve or convict the accused but, as a rule, have no part in the initial decision to prosecute him.63 The
possible exception to this rule is where there is an unmistakable showing of a grave abuse of discretion amounting
to lack or excess of jurisdiction that will justify judicial intrusion into the precincts of the executive. But that is not the
case herein.

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed 21 July
2005 Decision and 5 December 2005 Resolution, both of the Court of Appeals in CA-G.R. SP No. 88370 are
hereby AFFIRMED. Costs against petitioner Gloria Aguirre.

SO ORDERED.
G.R. No. 169143 February 2, 2007
[Formerly G.R. No. 138328]

PEOPLE OF THE PHLIPPINES, Appellee

vs.
SIMPLICIO DELANTAR, Appellant.

DECISION

TINGA, J.:

The forfeiture of the right to live free in society is the due requital for peddling a child to sexual servitude.

We begin with the antecedents.

On 27 August 1996, an information for violation of Section 5, Article III of Republic Act (R.A.) No. 76101 was filed
against appellant Simplicio Delantar y Redondo. Docketed as Criminal Case No. 96-91752 of the Regional Trial
Court (RTC) of Pasay City, the information was amended on 3 September 1996.3 The accusatory portion of the
Amended Information reads:

That sometime and during the period from 1994 to August 1996, in Pasay City, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, SIMPLICIO DELANTAR Y REDONDO, through
coercion and influence, did then and there wilfully, unlawfully and feloniously promote, facilitate and induce [AAA],4 a
female child below 12 years of age, to indulge in sexual intercourse and lascivious conduct for money, profit and
other consideration. 1aw phi 1.net

Contrary to [l]aw.5

On 4 September 1996, appellant, assisted by counsel de parte, entered a plea of not guilty and informed the court
that he did not want a pre-trial.6 An attempt to quash the information was made but the same proved
futile.7 Thereafter, trial proceeded in due course.

The prosecution presented the following as witnesses: (1) AAA,8 the complainant; (2) Dr. Emmanuel Aranas9 of the
PNP Crime Laboratory; and (3) Carolina Buan10 of the Philippine Long Distance Telephone Co. On 31 January
1997, the prosecution submitted its Formal Offer of Evidence.11

Trial thereafter continued with the defense presenting the following as witnesses: (1) Simplicio Delantar;12 (2)
Angelito Entruzo;13 and (3) Eduardo Juarez, Jr.14 On 20 August 1998, the defense rested its case.

On 25 February 1999, the RTC-Pasay City, Branch 109, rendered a Decision,15 finding appellant guilty beyond
reasonable doubt of two counts of violation of Section 5(a), paragraphs 1, 4 and 5 of Article III of R.A. No. 7610. The
trial court arrived at the following principal findings and conclusions, thus:

From all the foregoing, the Court opines that the prosecution has proven the guilt of the accused Simplicio Delantar
y Redondo beyond reasonable doubt when he delivered his daughter [AAA] to an Arab national by the name of Mr.
Hammond from their house at 2165-A P. Burgos St., Pasay City sometime in 1994 selling her in prostitution to the
said [A]rab who committed acts of lasciviousness on her person by kissing her on her lips, her breast, her private
parts and even rubbing his penis against her private parts which is a clear violation of Section 5(a), paragraph 1, 4,
and 5 [of] Article III of R.A. [No.] 7610 and hereby sentences him of Reclusion Perpetua and to pay civil liability to
the victim in the amount of ₱60,000.00.

Likewise, the Court finds accused guilty beyond reasonable doubt for violation of Section 5(a) paragraph 1, 4, and 5
of Article III of R.A. [No.] 7610 when the accused Simplicio Delantar pimped and delivered the complainant, an
eleven (11) year old minor to Congressman Romeo Jalosjos of the First District of Zamboanga del Norte at the Ritz
Tower in Makati where the said Congressman for eight (8) times committed acts of lasciviousness on her person
when he kissed her on her lips, private organ and even raped her. That all these times, the accused brought his
child from their residence at 2165-A P. Burgos St., Pasay City and [the Court] hereby sentences him to Reclusion
Perpetua and to pay the victim civil liability in the amount of ₱60,000.00.

SO ORDERED.16

Appellant interposed an appeal with this Court. After submission of the parties’ briefs, on 20 September 2004, this
Court through the Second Division then transferred the appeal to the Court of Appeals for appropriate action and
disposition.17 On 31 May 2005, the Court of Appeals rendered a Decision18 affirming with modification the trial court’s
Decision. The appellate court ruled in the dispositive portion, thus:

WHEREFORE, the appealed decision, finding appellant Simplicio Delantar guilty beyond reasonable doubt of
Violation of Section 5(a), paragraph[s] 1, 4 and 5, Article III of R.A. No. 7610, for one count only, is AFFIRMED with
the MODIFICATION that he is also sentenced to pay complainant [AAA] the amount of ₱50,000.00 as civil
indemnity, ₱50,000.00 as moral damages and ₱25,000.00 as exemplary damages.

Costs against appellant.

SO ORDERED.19

On 23 June 2005, appellant, through counsel, filed a Notice of Appeal from the Decision of the Court of Appeals to
this Court.20 On 21 July 2005, the Court of Appeals gave due course to the Notice of Appeal and elevated the
records of the case to this Court for purposes of the appeal.21

In his Brief,22 appellant assigns the following errors committed by the trial court:

THE TRIAL COURT ERRED IN CONVICTING [APPELLANT] OF THE CRIME CHARGED DESPITE THE FAILURE
OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT ERRED IN CONVICTING [APPELLANT] OF TWO (2) VIOLATIONS OF SECTION 5, ARTICLE
III, R.A. [NO.] 7610 DESPITE THE FACT THAT ONLY A SINGLE INFORMATION WAS FILED BY THE 2nd
ASSISTANT CITY PROSECUTOR OF PASAY CITY.

III

THE TRIAL COURT ERRED IN IMPOSING THE PENALTY FOR THE CRIME CHARGED IN ITS MAXIMUM
PERIOD (RECLUSION PERPETUA) WHEN THERE IS NO SHOWING IN ITS DECISION [OF] THE ATTENDANCE
OF A QUALIFYING CIRCUMSTANCE WHICH WOULD WARRANT THE IMPOSITION OF THE MAXIMUM
PENALTY.23

Of the issues raised by appellant in his brief, we only have to resolve the first and the third issues since the Court of
Appeals has already upheld the second contention which is that he should only be convicted of one violation24 and
also since a reversal of the ruling would constitute double jeopardy. In any event, we fully agree with the appellate
court’s adjudication.25

Appellant stands charged of violating Section 5, Article III of R.A. No. 7610, which provides:

ARTICLE III.

CHILD PROSTITUTION AND OTHER SEXUAL ABUSE

SEC. 5. Child Prostitution and Other Sexual Abuse.—Children, whether male or female, who for money, profit, or
any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

(a) Those who engage in or promote, facilitate or induce child prostitution which include, but are not limited
to, the following:

(1) Acting as a procurer of a child prostitute;

(2) Inducing a person to be a client of a child prostitute by means of written or oral advertisements or
other similar means;

(3) Taking advantage of influence or relationship to procure a child as a prostitute;

(4) Threatening or using violence towards a child to engage him as a prostitute; or

(5) Giving monetary consideration, goods or other pecuniary benefit to a child with the intent to
engage such child in prostitution.

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution
or subjected to other sexual abuse: Provided, That when the victim is under twelve (12) years of age, the
perpetrators shall be prosecuted under Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as
amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the
penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal
in its medium period; and

(c) Those who derive profit or advantage therefrom, whether as manager or owner of the establishment
where the prostitution takes place or of the sauna, disco, bar, resort, place of entertainment or establishment
serving as a cover or which engages in prostitution in addition to the activity for which the license has been
issued to said establishment.

In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt. Proof
beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute
certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced
mind.26

There is no doubt, drawing from the evidence, that AAA was a child who was exploited in prostitution as defined in
Section 5, Article III quoted above. The law punishes not only the person who commits the acts of sexual
intercourse or lascivious conduct with the child but also those who engage in or promote, facilitate or induce child
prostitution. Appellant is one such person.

The testimony of AAA shows that appellant procured her as a child prostitute for at least two clients: the first, an
Arab national named Mr. Hammond and the second, then Congressman Romeo Jalosjos.

AAA testified that she was brought to the first client at least eleven (11) times between the period 1994 to June
1996.27 On each of these occasions, appellant and AAA would go to Ralph Anthony Suites in Manila where the
client stayed. Appellant would tell AAA that they had to go to the client because they needed to pay some
obligations,28 they

had to settle something,29 they had to pay the electric bill,30 or they had to ask for money for AAA’s tuition
fees.31 Upon their arrival at Ralph Anthony Suites, appellant would talk to the client for a few minutes and then leave
AAA alone with the client. Money was usually given by the client to appellant who would leave on the pretext of
buying something from Robinsons, a nearby mall. When he returned, usually after two (2) to four (4) hours,
appellant would have something for AAA such as food and clothes.

Once left alone with AAA, the client would perform lascivious acts on AAA. With the sordid details spread all over
the transcript of AAA’s testimony as she gave it before the trial court, the recurrent salient points of her harrowing
experience revolved around the client’s kissing her, touching her breasts, embracing her, and inserting his finger in
her private parts. 32

On one occasion, the client even tried to insert his penis inside AAA’s vagina but the latter pleaded for him not to.
The client thereafter rubbed his penis on AAA’s vagina. On the same occasion, the client made AAA sit on him near
his groin while his penis was fully erect. The client then made pumping motions while his organ was touching AAA’s
vagina until "his penis got wet."33

After their first visit to the client, AAA told appellant that she did not want to go back because the client was "bastos."
Appellant promised her that they would no longer go back but the promise was broken as they went back a few
more times.34 AAA continued to complain to appellant about the acts committed on her by the first client but
appellant would dismiss the same saying that if the client’s private part is not inserted in AAA’s private part, there is
nothing wrong about it,35 or that since there was no penetration, there was nothing wrong about it.36

Sometime in June 1996, AAA told appellant that she did not want to go to the client anymore. On that day, AAA and
appellant went to Harrison Plaza where appellant instructed AAA to call the client and tell the latter that if he would
not give them ₱5000, they would not go there anymore. AAA complied and told the client exactly what appellant had
told her. The client responded by saying that he would only give them ₱5,000.00 if AAA would have sexual
intercourse with him. They did not go to this client anymore.37

Appellant thereafter started to bring AAA to the second client. As with the first client, appellant would tell AAA that
they had to go to the second client because they had obligations to pay such as the telephone bill, electric bill, rent,
and tuition fees.38 During each of these visits, the

client would give AAA money ranging from ₱2,000.00 to ₱10,000.00.39 The details of what transpired when AAA
was left alone with the second client were vividly recounted in People v. Jalosjos,40 where the second client was
convicted of two (2) counts of rape and six (6) counts of acts of lasciviousness, all committed against AAA on
various dates. In the case, the Court found that it was appellant who brought AAA to said client. The Court in that
case even referred to appellant as the second client’s "suking bugaw."41

From her testimony, it could easily be gleaned that AAA did not consent to the acts of lasciviousness and the sexual
intercourse. After their initial visit to the first client, AAA pointedly told appellant that she did not want to go back
because the client was "bastos" but appellant did not mind this and continued to bring AAA to the first client
still.42 AAA persisted in complaining but appellant would dismiss the remonstration, saying that if the client’s private
parts are not inserted in AAA’s private parts, there is nothing wrong about it,43 or that since there was no
penetration, there was nothing wrong about it.44

Appellant succeeded in infusing AAA with intense fear and awe of him. She was afraid that appellant might send her
away if she did not obey him.45 She was scared of him also because when he got angry, he would pull her and her
brother’s hair, whip them very hard, slap them, hit them on the upper arm with a hanger, box them on the arms, bite
them or even make them kneel on salt with outstretched hands.46 Appellant even hit AAA with the telephone
apparatus a number of times, the last time was on 15 August 1996, the day before she ran away to escape, and
only because she had forgotten to call the second client.47 It was this dread of appellant that pushed AAA to still go
with him to the clients even if she did not want what was being done to her by whoever was the client once she was
left alone with him.

Further, appellant instilled the feeling of guilt and helplessness in AAA by constantly saying that they had to pay
some obligations,48 they had to settle something,49 they had to pay the electric bill,50 or they had to ask for money for
AAA’s tuition fees.51

Verily, it was against AAA’s will and consent to see the two clients. But even if AAA had in fact consented, appellant
may still be prosecuted for child prostitution under Section 5, Article III of R.A. No. 7610 because the child’s consent
or lack of it is not an element of the offense.

As held by this Court in People v. Larin,52 a child is deemed exploited in prostitution or subjected to other sexual
abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other
consideration; or (b) under the coercion or influence of any adult, syndicate or group.53 If AAA was not coerced into
child prostitution under (b) above, she definitely was influenced by appellant to enter into said activity. As the person
who had raised and taken care of AAA, appellant had moral ascendancy over AAA. This moral ascendancy coupled
with AAA’s fear and awe of appellant and her exposure to the world of prostitution at the early age of five had
exerted a dominating influence on her being.

Further, AAA was doing it so that they could have money to meet their several needs, including her own tuition fees.
This engendered in AAA sufficient "consideration" under (a) above to engage or agree to be exploited in prostitution
because after every encounter with the clients, AAA would receive either money (ranging from ₱2,000.00 to
₱10,000.00) or food and clothing.

Aside from the testimony of AAA, the record is replete with evidence of appellant’s liability beyond reasonable doubt.
The testimony of Dr. Emmanuel L. Aranas, Medico Legal Officer of the PNP Crime Laboratory, who conducted a
medical examination on AAA on 23 August 1996, as well as the Medico Legal Report54 that he prepared showed
that, at the time of physical examination, AAA was in a non-virgin state physically and that her hymen had a shallow
healed laceration at 3 o’clock position and a deep healed laceration at 8 o’clock position. Dr. Aranas testified that
the lacerations could be caused by the entry either of a finger or an erect male organ a week or more prior to the
date of the examination.55 This testimony proves that AAA was subjected either to lascivious conduct or sexual
intercourse before the medical examination.

Witness Carolina Buan, for her part, testified that several calls were made from appellant’s phone to the second
client.56 Exhibits I to I-15-A and J to J-20, as well as appellant’s own admission that he was the subscriber of
telephone number 831-242357 and that he is the "S. Delantar" indicated in the telephone bill,58 establish a connection
between appellant and the second client. This connection in turn forged the regularity which characterized the
communication between the two, indeed the situation that normally obtains between a regular client and a "suking
bugaw."

Appellant, in his brief, does not deny that he brought AAA to the clients.59 He, however, attempts to exculpate
himself by stating that he did not coerce or influence AAA to go to the two clients to be exploited in prostitution. 60

Appellant further claims that there is no showing that he made promises to AAA either by assuring her that he would
give her money or anything to convince her to go with him to the clients. He even seeks to discredit AAA for not
attempting to object to be brought to the first client despite her previous experience in several encounters with him.
This absence of any objection on the part of AAA, so appellant insists, is proof that she was brought to the client of
her own free will, and at the same time militates against any finding that appellant had coerced or influenced AAA to
go to the client.61 Also, according to appellant, AAA herself admitted she had already known, by their second visit,
that she was being pimped to the first client.62 Appellant likewise dismisses AAA’s fear that he would send her away
should she refuse to go to the clients as a mere conclusion or presumption from AAA’s end because at no time did
appellant actually tell her to go away.63 In the same vein, AAA’s fear that appellant would get angry if she refused to
go with him to the clients is merely imaginary or conjectural.64 Appellant even cites excerpts from AAA’s testimony to
the effect that he only laid hands on AAA only for the purpose of disciplining her.65

Appellant’s testimony itself contains an admission that he had indeed brought AAA to the two clients. He admitted
that even in his presence, questions about AAA’s pretty legs and breast size were propounded.66 Certainly, he
cannot deny knowledge that the persons who propounded the questions had lewd designs on AAA. These are
questions laced with lecherousness and drenched in perversity especially when asked of a child. Worse, after such
questions were propounded, appellant left AAA alone with the clients who in the first place had inquired about AAA’s
legs and breasts. Appellant even admitted that in one instance the person who shot the questions to him even
placed his hands on the breasts of AAA.67

Appellant claims that he was promoting AAA’s prospective career as an actress. Appellant’s clear intention to pimp
or promote AAA as a child prostitute to the second client cannot be concealed in the guise of a move to help AAA to
realize her ambition to become an actress. AAA’s acting skills may not be measured or determined by a picture of
her in a bikini.68 There is no profound connection between acting skills and nudity.

Appellant’s recourse to the testimony of the other two witnesses is likewise vain and futile. Angelito Entruzo testified
that after appellant had adopted AAA, he took good care of her by providing for her needs such as food, clothing,
shelter and education.69 This testimony, while making appellant look benevolent, has actually worked to his
detriment because it further shows his dark side as a person on whom a child had depended but who abused the
situation of dependency. Ed Juares, Jr., on the other hand, merely testified that appellant had brought AAA to him to
make her an actress. The claim does not rule out the finding that appellant had engaged in child prostitution.

We reject appellant’s avowals of innocence. We affirm the verdict of guilt.

Doubtlessly, appellant had repeatedly pandered AAA to two clients for sexual gratification. He procured paying
customers for her sexual services. The acts done on AAA by the two clients ranged from "lascivious conduct"
defined under the Implementing Rules and Regulation of R.A. No. 7610, as "the intentional touching, either directly
or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into
the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition
of the genitals or pubic area of a person," and statutory rape, under Art. 335, paragraph 3 of the Revised Penal
Code, as amended by R.A. No. 7659.

Appellant’s violation of Sec. 5, Art. III of R.A. No. 7610 is as clear as day. The provision penalizes anyone who
engages in or promotes, facilitates or induces child prostitution either by: (1) acting as a procurer of a child
prostitute; or (2) inducing a person to be a client of a child prostitute by means of written or oral advertisements or
other similar means; or (3) by taking advantage of influence or relationship to procure a child as a prostitute; or (4)
threatening or using violence towards a child to engage him as a prostitute; or (5) giving monetary consideration,
goods or other pecuniary benefits to the child with the intent to engage such child in prostitution.

The purpose of the law is to provide special protection to children from all forms of abuse, neglect, cruelty,
exploitation and discrimination, and other conditions prejudicial to their development.70 A child exploited in
prostitution may seem to "consent" to what is being done to her or him and may appear not to complain. However,
we have held that a child who is "a person below eighteen years of age or those unable to fully take care of
themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or
mental disability or condition" is incapable of giving rational consent71 to any lascivious act or sexual intercourse. In
fact, the absence of free consent is conclusively presumed when the woman is below the age of twelve.72

Appellant, whom AAA had looked up to as her father, had the duty to care for and bring her up. Far from looking
after her moral character, mental state and physical well-being, he had actually facilitated her debasement by
introducing her to clients and inducing her to engage in prostitution. Abusing the moral ascendancy he had over her,
he exposed her to prostitution at a very tender age, made her feel it was her obligation to earn money for their
family, in a detestable manner at that, and callously impressed upon her that there was nothing wrong with what the
clients had been doing to her. At day’s end, he raked in the money that his corruption of the child had brought in.

The penalty prescribed by Section 5 of R.A. No. 7610 is reclusion temporal in its medium period to reclusion
perpetua. However, it was not proven that appellant is the parent or guardian of AAA.

The establishment of either relationship would have justified the imposition of the penalty provided in the law in its
maximum. Thus, there being neither mitigating nor aggravating circumstance, the penalty which could properly be
imposed is reclusion temporal in its maximum period, the medium of the penalty prescribed by the law. After
applying the Indeterminate Sentence Law, the proper imposable penalty is an indeterminate sentence the maximum
term of which shall be that which could properly be imposed (reclusion temporal in its maximum period), and the
minimum of which shall not be less than the minimum term prescribed by the law (reclusion temporal in its medium
period).73

Section 31(c), Article XII of R.A. No. 7610 states:

xxxx

(c) The penalty provided herein shall be imposed in its maximum period when the perpetrator is an ascendant,
parent, guardian, stepparent or collateral relative within the second degree of consanguinity or affinity, or a
manager or owner of an establishment which has no license to operate or its license has expired or has been
revoked. (Emphasis supplied.)
Under R.A. No. 7610, Sec. 31(c), relationship is not a qualifying circumstance but only an ordinary generic
aggravating circumstance. Thus, although it was not alleged in the information it can nevertheless be taken into
account in fixing the penalty for the crime because it was proven.74 A generic aggravating circumstance provides for
the imposition of the prescribed penalty in its maximum period, while a qualifying circumstance changes the nature
of the crime.75

In the case at bar, the only evidence presented to establish AAA’s alleged relationship to appellant is her birth
certificate76 which mentions appellant as the father. However, said document does not bear appellant’s signature. In
fact, appellant, in his testimony, denied that he is AAA’s father.77 He claimed that, sometime in 1983, AAA was
brought to him by a certain Salvacion Buela, AAA’s real mother, who could not support her.78 Salvacion Buela told
appellant that AAA was born on 11 May 1983 and that her natural father was a Japanese national.79 As prepared,
the birth certificate indicates that AAA was born on "11 May 1985" to "Librada A. Telin" (mother) and "Simplicio R.
Delantar" (father) who were married on "14 February 1977" in "Manila." The legible signature which reads "Librada
T. Delantar" appears below the printed item "INFORMANT" and above the typewritten name "Librada T. Delantar"
and word "Mother." However, nowhere on the face of the birth certificate can the signature of appellant be found.
According to appellant, Librada A. Telin is his sister and they did not get married to each other on the date indicated
in the birth certificate, or impliedly at least, not ever.

While under the Family Code, filiation can be established by, among others, the record of birth appearing in the civil
register,80 yet the rule is where the birth certificate presented was not signed by the father against whom filiation is
asserted, such may not be accepted as evidence of the alleged filiation. In Angeles v. Maglaya,81 we held:

x x x Such certificate, albeit considered a public record of a private document is, under Section 23, Rule 132 of the
Rules of Court, evidence only of the fact which gave rise to its execution: the fact of birth of a child. Jurisprudence
teaches that a birth certificate, to be considered as validating proof of paternity and as an instrument of recognition,
must be signed by the father and mother jointly, or by the mother alone if the father refuses. x x x82

In Angeles v. Maglaya, we refused to give evidentiary weight to the birth certificate as proof of filiation in a case for
settlement of estate to support a claim of legitimacy because the same was unsigned by the alleged father. With
more reason we should not accord value to the birth certificate in this case considering that its effect would be to
increase the penalty to be imposed on the appellant. This is a criminal case wherein an interpretation unfavorable to
the accused is generally unacceptable.

The Solicitor General cites this Court’s pronouncement in Heirs of Cabais v. Court of Appeals,83 that "[a] birth
certificate, being a public document, offers prima facie evidence of filiation and a high degree of proof is needed to
overthrow the presumption of truth contained in such public document."84 The pronouncement is not applicable to
this case. It was made merely as an elucidation of the limited evidentiary value of a baptismal certificate in this
jurisdiction vis-à-vis a birth certificate. In that case, presented was the baptismal certificate of the person whose
filiation was sought to be established. The birth certificate itself was not presented. In the case at bar, the birth
certificate of AAA was presented.

We thus hold that the birth certificate of AAA is prima facie evidence only of the fact of her birth and not of her
relation to appellant. After all, it is undisputed that appellant is not AAA’s biological father.

At best, appellant is AAA’s de facto guardian. Now, would this circumstance justify the imposition of the higher
penalty on him? We think not. We apply, by analogy, the ruling of this Court in People v. Garcia,85 where we held
that the restrictive concept of guardian, legal or judicial, is required by Sec. 11 of R.A. No. 7659. Said provision, by
way of amending Art. 335 of the Revised Penal Code, ordains that where the victim of the crime of rape is under
eighteen years of age and the offender is, inter alia, a guardian of the victim, the death penalty shall be imposed.
We ruled:

The law requires a legal or judicial guardian since it is the consanguineous relation or the solemnity of judicial
appointment which impresses upon the guardian the lofty purpose of his office and normally deters him from
violating its objectives. Such considerations do not obtain in appellant’s case or, for that matter, any person similarly
circumstanced as a mere custodian of a ward

or another’s property. The fiduciary powers granted to a real guardian warrant the exacting sanctions should he
betray the trust.86

Further, according to the maxim noscitur a sociis, the correct construction of a word or phrase susceptible of various
meanings may be made clear and specific by considering the company of words in which it is found or with which it
is associated.87 Section 31(c) of R.A. No. 7610 contains a listing of the circumstances of relationship between the
perpetrator and the victim which will justify the imposition of the maximum penalty, namely when the perpetrator is
an "ascendant, parent, guardian, stepparent or collateral relative within the second degree of consanguinity or
affinity." It should be noted that the words with which "guardian" is associated in the provision all denote a legal
relationship. From this description we may safely deduce that the guardian envisioned by law is a person who has a
legal relationship with a ward. This relationship may be established either by being the ward’s biological parent
(natural guardian) or by adoption (legal guardian). Appellant is neither AAA’s biological parent nor is he AAA’s
adoptive father. Clearly, appellant is not the "guardian" contemplated by law.
On the award of indemnity and damages, we delete the Court of Appeals’ award of civil indemnity because
appellant was not the one who committed the lascivious acts and perpetrated the rape of AAA. Instead, we impose
a fine which shall be administered as a cash fund by the Department of Social Welfare and Development and
disbursed for the rehabilitation of AAA, pursuant to Section 31 (f), Article XII, R.A. No. 7610. Likewise, the award of
exemplary damages is improper considering that appellant is not AAA’s biological father.

WHEREFORE, premises considered, the 31 May 2005 Decision of the Court of Appeals in CA-G.R. CR H.C. No.
00977 is hereby AFFIRMED WITH MODIFICATION. Appellant SIMPLICIO DELANTAR y REDONDO is found guilty
of one count of violation of Section 5(a), R.A. No. 7610. He is sentenced to suffer the indeterminate sentence of
fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as minimum, to seventeen (17) years,
four (4) months and one (1) day of reclusion temporal, as maximum, and to pay a fine in the sum of ₱20,000.00 to
be administered as a cash fund by the Department of Social Welfare and Development and disbursed for the
rehabilitation of AAA,88 and ₱50,000.00 as moral damages.

SO ORDERED
A.M. No. RTJ-05-1960 October 25, 2005

(Formerly OCA-IPI No. 02-1547-RTJ)

JUVELYN D. KILAT, Complainant,

vs.
JUDGE MARIANO S. MACIAS, RTC, Branch 28, Liloy, Zamboanga del Norte, Respondent.

RESOLUTION

Tinga, J.:

This is an administrative complaint charging respondent Judge Mariano S. Macias, Executive Judge of the Regional
Trial Court, Branch 28, Liloy, Zamboanga del Norte, with immorality, conduct unbecoming of a judicial officer, rape,
and violation of the Anti-Child Abuse Law.1

According to complainant, she was a sixteen (16) year-old working high school student in Ipil, Zamboanga del Sur
when she met respondent in November 1999. One time, respondent fetched her from her school and had dinner
with her in a local restaurant. After dinner, respondent brought her to his vehicle where he kissed and fondled her,
assuring her that he will take care of her, her studies, her expenses and her future. Later, she was brought to a
hotel. Despite her plea to be driven home, respondent refused, telling her that he just wanted her company while he
was resting. Complainant tried to go out of the room but respondent caught up with her and threatened her with a
gun. Respondent removed her clothes and succeeded in having sexual intercourse with her. Respondent asked
complainant to be his live-in partner, but she did not reply. Respondent threw at complainant ₱1,500.00 worth of
bills and warned her not to tell any person what had transpired.2

Because of the incident, complainant was forced to quit her job and stop with her schooling. She went back to the
house of her parents in Salug, Zamboanga del Norte. Respondent still managed to find out her whereabouts and
offered her a job in Sindangan, Zamboanga del Norte, which she accepted. However, while in Sindangan,
respondent brought her to his house where he again succeeded in having sexual intercourse with her. Afterwards,
he gave her money and threatened to have her killed should she tell anyone what happened. From that time
onwards, complainant became respondent’s kept woman, spending Saturday nights with him and he gave her
money every time they had sexual intercourse. Complainant claims that she left respondent when she found out that
he was having another affair. She went back to her parents and told them what respondent did to her. They sought
the help of Salug officials to seek justice for what respondent had done.3

For his part, respondent claims that complainant was just being used by his ex-wife, Margie Corpus Macias, and
several other personalities who he believed had "selfish and personal axes to grind"4 against him. He denies the
accusation of raping and having illicit relations with complainant whom he knew only as a passing acquaintance. He
claims that he had been in contact with complainant only once, when he bought her cellular phone, and only
because he pitied her. Respondent asserts that complainant informed him that she was kidnapped and merely
forced to sign the documents used in the instant administrative complaint. To find out the veracity of complainant’s
story, respondent and his counsel asked her to narrate her plight in the presence of a pastor of the Adventist
Church, a lawyer, and a public prosecutor—all respected members of the community.5 In support of his defense,
respondent annexed the following documents: (i) letter addressed to the Chief Justice signed by complainant
withdrawing the instant administrative complaint; (ii) letter to Ombudsman Aniano Desierto signed by complainant,
filing administrative charges against those who conspired to kidnap her; (iii) Sinumpaang Pamamahayag6 executed
by complainant dated 21 August 2001; (iv) Apas-Sumpay Nga Pamamahayag,7 dated 23 August 2001among
others.

Complainant confessed8 that she was approached by Vice Mayor Edgar Saldia and Mayor Jesus "Siote" Lim of
Salug, Zamboanga del Norte and offered to help her prepare a case for rape against respondent. She refused
because respondent did not do anything wrong to her. Later that day, Mrs. Margie Macias talked to complainant,
telling her that she was "heaven-sent," because Mrs. Macias wanted respondent to be dismissed from his work. Two
days later, Vice Mayor Saldia promised her mother that he will give complainant’s father a job in the municipal hall if
they agree to the filing of a rape case against respondent. When complainant’s mother refused, Vice Mayor Saldia
threatened her with a lawsuit. Reluctantly, complainant was left in the vice mayor’s house where she was locked in
one of the rooms. After two or three days, she was brought to the house of Atty. Selda, where she was forced to
sign the affidavit-complaint against respondent. Afterwards, accompanied by the vice mayor’s daughter known to
her as "Blanca," they had the affidavit notarized by a public prosecutor. Complainant claims that she attempted to
tell the public prosecutor about the untruthfulness of the affidavit, but she was afraid of Blanca who was then
glowering at her.9

After a few days, complainant was brought to Manila and made to stay in the house of Atty. Reynaldo Llego in
Cubao, Quezon City. She was locked up in the house for almost three weeks and was provided with a guard.
However, she was able to escape through the help of her cousin, Carmen Manlangit, who was then working in
Quezon City.10
On 5 August 2002, respondent filed a Manifestation11 informing the Court of the Resolution of the Office of the
Ombudsman-Mindanao which dismissed the criminal complaint for rape filed by the complainant.

Meanwhile, complainant filed charges against those accused of kidnapping her, which complaint was endorsed by
the Deputy Ombudsman for Mindanao to the Office of the Provincial Prosecutor of Zamboanga del Norte. The
Provincial Prosecutor initially suspended the resolution of the complaint, but the Department of Justice reversed the
resolution and ordered the filing of informations for grave coercion and serious illegal detention against Mayor Jesus
Lim, Vice Mayor Edgar Saldia, Atty. Alanixon Selda, Margie Corpus-Macias, Ma. Blanca Urongan, Sidney Sy,
Dolbert Panangitan, Victonie Panangitan, Salque Bulado, Robert Abella, Atty. Reynaldo Llego, Tony Gallara, Rick
"Doe", and Gingging Enriquez.12 On 1 December 2003, the Provincial Prosecutor filed the corresponding information
and the case was docketed as Criminal Case No. L-00727, raffled to RTC Branch 28, Liloy, Zamboanga del Norte
presided by respondent judge. On 2 December 2003, respondent issued an order for the arrest of the persons
named in the information.13 The next day, accused moved for the inhibition of respondent from the criminal case on
the ground that respondent is directly involved in the said case. Respondent thus issued an order inhibiting himself
from the criminal proceedings and recommended to the Court that another judge be designated in his place.14

The accused in Criminal Case No. L-00727 filed a special civil action for certiorari and prohibition (docketed as CA-
G.R. SP No. 80984) with the Court of Appeals, questioning: (i) the DOJ resolution ordering the filing of informations
against them; (ii) the information filed; and (iii) the warrant of arrest issued by respondent judge. The Court of
Appeals granted the petition, nullifying the information and quashing the warrant of arrest earlier issued. It also
recommended to the Office of the Court Administrator (OCA) a separate investigation into respondent judge’s
administrative culpability for his acts of coercion and harassment and in precipitously issuing the arrest warrant
despite being intimately involved in the criminal case.15

Meanwhile, on 8 March 2004, this Court granted respondent’s application for disability retirement under Republic
Act No. 910, as amended. However, payment of disability benefits was held in abeyance pending resolution of the
administrative complaints against him.16

The OCA required respondent to file his comment on the matter,17 and on 20 April 2004, respondent complied with
the directive, denying any administrative culpability or guilt for acts of coercion, harassment, or unlawful detention of
complainant.18 He claimed that he was merely performing a ministerial function when he issued the subject arrest
warrants. Besides, said warrant had not been implemented and accused could still resort to procedural remedies.19

On 14 May, 2004, the OCA submitted its findings and recommendation, to wit:

1. This matter be RE-DOCKETED as a regular administrative complaint against respondent Judge;

2. The charge of immorality, conduct unbecoming of a judicial officer, rape and violation of the Anti-Child Abuse Law
against the respondent be DISMISSED for lack of sufficient evidence;

3. Respondent Judge be found GUILTY of bias and abuse of authority for issuing the warrant of arrest in Criminal
Case No. L-00727 and that he be meted with the penalty of FINE in the sum of Two Thousand Pesos (₱2,000.000)
pesos to be deducted from his disability retirement benefits. 20

The case was referred to Court of Appeals Associate Justice Jose Mendoza for investigation, report and
recommendation. However, Justice Mendoza prayed to be excused from conducting the investigation since he was
a member of the division which decided CA-G.R. SP No. 80984. The case was then referred to Associate Justice
Remedios Salazar-Fernando, likewise asked that she be allowed to recuse herself since she was the ponente in a
case related to CA-G.R. SP No. 80984. The case was thus referred to Associate Justice Martin S. Villarama, Jr.

In his Report and Recommendation21 dated 4 August 2005, Justice Villarama found that complainant’s Sinumpaang
Pamamahayag and Apas-Sumpay Nga Pamamahayag created serious doubts as to whether respondent committed
the acts complained of. There was no evidence of compulsion or duress in the execution of her affidavits of
recantation. Her affidavits of retraction were executed in the presence of respected members of the community, with
corroborating sworn statements from other persons. On the other hand, complainant’s counsel of record failed to
present any satisfactory explanation to support the charges. He was also unable to comment on complainant’s
affidavits of retraction. There being no substantial evidence to establish the commission of the acts complained of,
the Investigating Justice recommended the dismissal of the administrative complaint for immorality.22

On the charge of abuse of authority, the Investigating Justice opined that respondent should be held administratively
liable for issuing the warrant of arrest in Criminal Case No. L-00727. According to him, respondent should have
voluntarily inhibited himself from the case, as per Sec. 1, Rule 137 of the Rules of Court, his wife being one of the
accused therein. Moreover, the rest of the accused were the very same persons implicated by herein complainant
as those who instigated the present administrative complaint. His belated inhibition, after he had issued the arrest
warrant, is indicative of the propensity to use his office to get back at those responsible for filing the administrative
charges against him. The Investigating Justice recommended the penalty of fine in the amount of ₱20,000.00 in
accordance with Secs. 9 and 11 (B), Rule 40 of the Rules of Court.23

We express our concurrence with the findings and recommendation of the Investigating Justice.
Administrative charges against members of the judiciary must be supported at least by substantial evidence,24 or
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In the present
case, save for the Affidavit-Complaint dated 24 July 2001, no other document or evidence was submitted to
substantiate the charges of immorality, conduct unbecoming of a judicial officer, rape, and violation of the Anti-Child
Abuse Law against respondent judge. More importantly, complainant herself executed sworn statements recanting
her charges against respondent. As observed by the Investigating Justice, while the Complaint-Affidavit may have
been executed with great detail, the affidavits of retraction are equally detailed and impressed with greater
coherence and spontaneity, and supported by affidavits from people who had knowledge of the events which
actually transpired. Interestingly also, even as complainant had already retracted her charges, her counsel of record,
Atty. Alexander Versoza, merely stated that "when there is smoke, there is fire."25 Considering these, the complaint
for immorality has no leg to stand on and should be dismissed.

Now on the issue of abuse of authority. Rule 137 of the Rules of Court mandatorily disqualifies a judge or judicial
officer to sit in any case in which: (a) he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or
otherwise; (b) he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the
fourth degree, computed according to the rules of civil law; (c) he has been executor, administrator, guardian,
trustee or counsel; or (d) he has presided in any inferior court when his ruling or decision is the subject of review,
without the written consent of all parties in interest, signed by them and entered upon the record.26

There is no dispute that Mrs. Margie Corpus-Macias, accused in Criminal Case No. L-00727, is the estranged wife
of respondent judge. This circumstance makes it mandatory for respondent to inhibit himself from the case, but this
he unfortunately did not do. He cannot exercise his discretion whether to inhibit himself or not. It was a clear case of
violation of the Rules of Court.

As properly observed both by the OCA and the Investigating Justice, the issuance of a warrant of arrest is not
ministerial in nature, but rather requires the exercise of judicial discretion on the part of the issuing magistrate.27 The
Revised Rules of Criminal Procedure requires the judge’s personal evaluation of the resolution of the prosecutor
and its supporting evidence within ten (10) days from the filing of the complaint or information. Only when he finds
probable cause should he issue a warrant of arrest or a commitment order.28 In Criminal Case No. L-00727,
however, respondent judge issued the warrant of arrest a mere day after the filing of the information charging
accused therein with grave coercion and serious illegal detention. Such undue alacrity casts doubt on the motive of
respondent, especially since the accused were known to him to be the same people who instigated the present
administrative case against him, and against whom he filed a civil suit for damages. Moreover, these were the same
people whom respondent claims to have "axes to grind" against him. Respondent’s swift issuance of the arrest
warrant suspiciously smells of vengeance and vindication. He might have been prejudiced by the malicious acts of
the accused, but he should not use his position in the

judiciary for his personal concerns. In order to avoid suspicions of wrongdoing, a respect for traditional and
prevailing rules must be observed and kept constantly in mind. A judge should, in fine, administer his office with due
regard to the integrity of the judicial system. He must not be perceived as being a repository of arbitrary power but
as one dispensing justice under the sanction of the rule of law.29 That he inhibited himself after they moved for his
inhibition cannot extenuate his culpability. At the outset, he should have inhibited himself from the case if only to
avoid any doubt or suspicion of bias and partiality against the accused.

Section 9 of Rule 140 of the Rules of Court30 provides that a violation of Supreme Court rules, directives or circulars
is a less serious charge which

merits the penalty of either suspension from office without salary and other benefits for not less than one (1) month
not more than three (3) months; or a fine of more than ₱10,000.00 but not exceeding ₱20,000.00.31 Because of the
clear violation by respondent of the rule on mandatory inhibition, as well as the bias and abuse of authority, the
recommended fine of ₱20,000.00 is proper.

WHEREFORE, the administrative complaint for immorality against respondent Judge Mariano Joaquin S. Macias is
DISMISSED for insufficiency of evidence. However, he is hereby held administratively liable for abuse of authority in
issuing the warrant of arrest in Criminal Case No. L-00727 and for violation of Sec. 1, Rule 137 of the Rules of
Court, and FINED in the amount of Twenty Thousand Pesos (₱20,000.00), to be deducted from his disability
benefits.

SO ORDERED
G.R. No. 156013 July 25, 2006

ROBERTO P. DE GUZMAN, petitioner,

vs.
HERNANDO B. PEREZ, in his capacity as Secretary of Justice, and SHIRLEY F. ABERDE, respondents.

DECISION

CORONA, J.:

May a parent who fails or refuses to do his part in providing his child the education his station in life and financial
condition permit, be charged for neglect of child under Article 59(4)1 of PD 603?2

In this petition for certiorari,3 petitioner Roberto P. de Guzman assails the January 3, 2002 resolution of public
respondent, then Justice Secretary Hernando B. Perez, dismissing de Guzman’s petition for review of the City
Prosecutor of Lipa City’s resolution in I.S. No. 2000-2111. Likewise questioned is public respondent’s September
24, 2002 resolution denying reconsideration.

Petitioner and private respondent Shirley F. Aberde became sweethearts while studying law in the University of Sto.
Tomas. Their studies were interrupted when private respondent became pregnant. She gave birth to petitioner’s
child, Robby Aberde de Guzman, on October 2, 1987.

Private respondent and petitioner never got married. In 1991, petitioner married another woman with whom he begot
two children.

Petitioner sent money for Robby’s schooling only twice — the first in 1992 and the second in 1993. In 1994, when
Robby fell seriously ill, petitioner gave private respondent P7,000 to help defray the cost of the child’s hospitalization
and medical expenses. Other than these instances, petitioner never provided any other financial support for his son.

In 1994, in order to make ends meet and to provide for Robby’s needs, private respondent accepted a job as a
factory worker in Taiwan where she worked for two years. It was only because of her short stint overseas that she
was able to support Robby and send him to school. However, she reached the point where she had just about spent
all her savings to provide for her and Robby’s needs. The child’s continued education thus became uncertain.

On the other hand, petitioner managed the de Guzman family corporations. He apparently did well as he led a
luxurious lifestyle. He owned at least five luxury cars, lived in a palatial home in the exclusive enclave of Ayala
Heights Subdivision, Quezon City, built a bigger and more extravagant house in the same private community, and
sent his children (by his wife) to expensive schools in Metro Manila. He also regularly traveled abroad with his
family. Despite his fabulous wealth, however, petitioner failed to provide support to Robby.

In a letter dated February 21, 2000, private respondent demanded support for Robby who was entering high school
that coming schoolyear (June 2000). She explained that, given her financial problems, it was extremely difficult for
her to send him to a good school.

Petitioner ignored private respondent’s demand. The latter was thus forced to rely on the charity of her relatives so
that she could enroll her son in De La Salle high school in Lipa City.

On June 15, 2000, private respondent filed a criminal complaint4 for abandonment and neglect of child under Article
59(2) and (4) of PD 603 with the Office of the City Prosecutor of Lipa City. It was docketed as I.S. No. 2000-2111.

In his counter-affidavit,5 petitioner averred that he never abandoned nor intended to abandon Robby whom he
readily acknowledged as his son. He claimed that he discharged his responsibilities as a father and said that he
paid P7,000 for his son’s hospitalization and medical needs. He also shouldered the expenses of Robby’s birth and
sent money to help out when Robby was sick or was in need of money. Claiming financial incapacity, he insisted
that the acts attributed to him did not constitute abandonment or neglect.

Petitioner pointed out that private respondent was the financially capable parent while he had no fixed job and
merely depended on the charity of his father. He asserted that the five luxury cars belonged not to him but to
Balintawak Cloverleaf Market Corporation. He denied ownership of the big house in Ayala Heights Subdivision,
Quezon City. He lived there with his family only by tolerance of his father. He also disclaimed ownership of the
newly constructed house and again pointed to his father as the owner. Even the schooling of his two children (by his
wife) was shouldered by his father.

On August 1, 2000, private respondent submitted her reply-affidavit.6 To prove petitioner’s financial capacity to
support Robby’s education, she attached a notarized copy of the General Information Sheet (GIS) of the RNCD
Development Corporation. It showed that petitioner owned P750,000 worth of paid-up corporate shares.
In his rejoinder-affidavit,7 petitioner maintained that his equity in the RNCD Development Corporation belonged in
reality to his father. The shares were placed in his name only because he had no means to invest in the corporation.
He could not use, withdraw, assign or alienate his shares. Moreover, the corporation was virtually dormant and
petitioner did not receive any compensation as its secretary.

On August 15, 2000, the City Prosecutor of Lipa City issued his resolution8 dismissing the complaint for
abandonment but finding probable cause to charge petitioner with neglect of child punishable under Article 59(4) of
PD 603 in relation to Section 10(a)9 of RA 7610.10

On August 25, 2000, an information was filed before Branch 85 of the Regional Trial Court of Lipa City for the crime
of neglecting a minor child. It was docketed as Criminal Case No. 0431-00.

Before petitioner could be arraigned, however, he filed a petition for review of the City Prosecutor’s resolution with
the Secretary of Justice.

On January 3, 2002, public respondent dismissed the petition for review and affirmed the City Prosecutor’s
resolution.11 He found that petitioner’s ostentatious and luxurious lifestyle constituted circumstantial evidence of his
ample financial resources and high station in life. Petitioner did not deny allegations that he failed to send a single
centavo for the education of his son. All the elements of the offense were therefore sufficiently established.
Petitioner’s claim that everything he had belonged to his father was a defense which should properly be raised only
during trial.12

Petitioner sought reconsideration but the same was denied.13 Hence, this petition.

Petitioner contends that public respondent acted with grave abuse of discretion in sustaining the City Prosecutor’s
resolution. He insists that there is no probable cause to justify his prosecution for neglect of a minor child. First, he is
financially incapable to give support. One can only be charged with neglect if he has the means but refuses to give
it. Second, Robby is not a neglected child. He has been given, albeit by private respondent who is the financially
capable parent, the requisite education he is entitled to.

The petition is without merit.

The rule is that judicial review of the resolution of the Secretary of Justice is limited to a determination of whether it
is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.14 Courts are without power to
substitute their judgment for that of the executive branch.15 They may only look into the question of whether such
exercise has been made in grave abuse of discretion.16

Grave abuse of discretion is such capricious and whimsical exercise of judgment which amounts to an excess or
lack of jurisdiction.17 Where it is not shown that the findings complained of are wholly devoid of evidentiary support
or that they are patently erroneous as to constitute serious abuse of discretion, the findings must be sustained.18

The assailed resolutions of public respondent were supported by evidence on record and grounded in law. They
were not issued in a capricious, whimsical or arbitrary manner. There is therefore no reason to countermand them.

Petitioner is charged with neglect of child punishable under Article 59(4) of PD 603 which provides that:

Art. 59. Crimes. – Criminal liability shall attach to any parent who:

xxx xxx xxx

(4) Neglects the child by not giving him the education which the family’s station in life and financial
conditions permit.

xxx xxx xxx

The crime has the following elements:

(1) the offender is a parent;

(2) he or she neglects his or her own child;

(3) the neglect consists in not giving education to the child and

(4) the offender’s station in life and financial condition permit him to give an appropriate education to the
child.

Here, petitioner acknowledged Robby as his son. He has not denied that he never contributed for his education
except in two instances (1992 and 1993). He admitted that the boy’s education was being financed by private
respondent and her relatives. He stated under oath that the last time he sent material support to his son was in 1994
when he gave P7,000 for the latter’s hospitalization and medical expenses.

There is a prima facie showing from the evidence that petitioner is in fact financially capable of supporting Robby’s
education. The notarized GIS of the RNCD Development Corporation indicates that petitioner owns P750,000 worth
of paid-up shares in the company.

Petitioner’s assertion that the GIS is not evidence of his financial capability (since the shares are allegedly owned by
his father) is of no moment. The claimis factual and evidentiary, and therefore a defense which should be interposed
during the trial.

The argument that criminal liability for neglect of child under Article 59(4) of PD 603 attaches only if both parents are
guilty of neglecting the child’s education does not hold water.

The law is clear. The crime may be committed by any parent. Liability for the crime does not depend on whether the
other parent is also guilty of neglect. The law intends to punish the neglect of any parent, which neglect corresponds
to the failure to give the child the education which the family’s station in life and financial condition permit. The
irresponsible parent cannot exculpate himself from the consequences of his neglect by invoking the other parent’s
faithful compliance with his or her own parental duties.

Petitioner’s position goes against the intent of the law. To allow the neglectful parent to shield himself from criminal
liability defeats the prescription that in all questions regarding the care, custody, education and property of the child,
his welfare shall be the paramount consideration.19

However, while petitioner can be indicted for violation of Article 59(4) of PD 603, the charge against him cannot be
made in relation to Section 10(a) of RA 7610 which provides:

SEC. 10. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions Prejudicial to the
Child’s Development. –

(a) Any person who shall commit any other acts of child abuse, cruelty or exploitation or be responsible for
other conditions prejudicial to the child’s development including those covered by Article 59 of PD No. 603,
as amended, but not covered by the Revised Penal Code, as amended, shall suffer the penalty of prision
mayor in its minimum period. (emphasis supplied)

xxx xxx xxx

The law expressly penalizes any person who commits other acts of neglect, child abuse, cruelty or exploitation or be
responsible for other conditions prejudicial to the child’s development including those covered by Article 59 of PD
603 "but not covered by the Revised Penal Code."

The "neglect of child" punished under Article 59(4) of PD 603 is also a crime (known as "indifference of parents")
penalized under the second paragraph of Article 277 of the Revised Penal Code.20 Hence, it is excluded from the
coverage of RA 7610.

We make no determination of petitioner’s guilt or innocence of the crime charged. The presumption of innocence in
his favor still stands. What has been ascertained is simply the existence of probable cause for petitioner’s indictment
for the charge against him, that is, whether there is sufficient ground to engender a well-founded belief that a crime
has been committed and that petitioner is probably guilty thereof, and should thus be held for trial. Petitioner’s guilt
should still be proven beyond reasonable doubt in Criminal Case No. 0431-00.

WHEREFORE, the petition is hereby DISMISSED.

Costs against petitioner.

SO ORDERED.