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Counter Affidavit - Jerwin

1. Jerwin Herera denies the allegations of rape and violation of anti-child abuse laws made against him by Tifanny Cathryn Fabro and John Patrick Fabro. 2. He admits living with the complainants and their mother but denies any unlawful sexual acts, stating he treated the minor complainant like a daughter. 3. Medical examinations found the minor complainant's genitals were normal, indicating no rape or sexual assault occurred. Herera claims the case lacks merit and should be dismissed.

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John Jay Austria Labrador
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2K views

Counter Affidavit - Jerwin

1. Jerwin Herera denies the allegations of rape and violation of anti-child abuse laws made against him by Tifanny Cathryn Fabro and John Patrick Fabro. 2. He admits living with the complainants and their mother but denies any unlawful sexual acts, stating he treated the minor complainant like a daughter. 3. Medical examinations found the minor complainant's genitals were normal, indicating no rape or sexual assault occurred. Herera claims the case lacks merit and should be dismissed.

Uploaded by

John Jay Austria Labrador
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Republic of the Philippines

DEPARTMENT OF JUSTICE
NATIONAL PROSECUTION SERVICE
OFFICE OF THE CITY PROSECUTOR
QUEZON CITY

TIFANNY CATHTRYN FABRO y GANE/

JOHN PATRICK FABRO Y GANE. XV-03-INV-20C-1949

Complainants, for: Violation of R.A. 8353

and Viol. of 7610

-versus-

JERWIN HERERA y DELA CRUZ

Respondent.

x----------------------------------------x

COUNTER-AFFIDAVIT

I, JERWIN D. HERERA, single and residing at No. 06 Rosal Street,


Gloria 5, Talipapa, Quezon City, after having been duly sworn to in
accordance with the law, hereby depose and state THAT:

1. I am executing this counter-affidavit as a reply to the


Affidavit of Complaint filed by TIFANNY CATHRYN FABRO y GANE/
JOHN PATRICK FABRO y GANE.

ADMISSIONS AND DENIALS

2. At the onset, herein respondent would like to categorically


DENY the allegations of the herein complainant for being FALSE,
MALICIOUS, FABRICATED imputing towards the undersigned
respondent of the crime of Rape (R.A. 8353) and violation of R.A.
7610, for reasons, which will be discussed in my counter-statement of
facts.

COUNTER-STATEMENT OF FACTS

3. At the onset the allegations of raping the herein minor respondent


was merely fabricated since there was no sufficient evidence being
presented to show that the victim was raped for several times by
the respondent.

That during the year 2016 up to 2019, the respondent duly admitted
that he was living with the complainant together with her mother but
since he treated her as his own child, it is morally wrong to do things
against her will like the accusations being hurled upon him.

As a matter of fact, what happened on December 18, 2019 as alleged


in the complaint was a total lie, bereft of any merit because such was
a product of falsehood. The truth of the matter that transpired was,
after the respondent removed my white hairs, she felt sleepy that is
why I opted her to lean on my abdomen as I brushed her hair until
she went asleep. I never sucked her breast contrary to what was
alleged in the complaint.

4. That there is no sufficient evidence that was submitted to


support that the respondent committed several sexual encounters
against the respondent that would constitute probable cause to
endanger a well-founded belief that a crime has been committed and
that herein respondent is probably guilty thereof.

5. Revised Penal Code defines RAPE:

Article 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 (12) twelve years of age or is
demented.

The elements that would constitute the crime of RAPE under Art.
266-A, par. 1 (a) of RA 8353 are:
1)Carnal knowledge
2)Force or intimidation and the commission of the act
without consent, or
3)Against the will of the victim

The foregoing elements were not duly established in the


affidavit complaint of the complainant.

In this case, there is no evidence presented by the complainant


that the respondent committed several sexual encounters against the
allege minor respondent except for the barangay blotter which
among the contents stated therein to quote:

“base sa sinabi ng anak, elementary pa lang ay nagsimula na


ang pang aabuso sa kanya hangang nagkaroon na ng penetration.
December 18, nung naaktuhan ko ang pagtangkang pang aabuso sa
aking anak. Ayon sa aking anak, ay nakailang beses na raw syang
nagalaw ng aking kinakasama”.

It is well that we be reminded that “a police blotter/ barangay


blotter does not purport to be a complete and irrefutable record of
what had happened at scene of the crime. It is no more than a
summary report of the occurrence of the crime. This is the ruling of
the Supreme Court in the case of People of the Philippines versus
Romeo Apolinario et. al, G.R. No. 97426, June 3, 1993.

Another evidence that was presented was a “Provisional


Medical Certificate”, issued by Quezon City General Hospital.

The medical findings of the Physician who examined the


respondent will disclose that ALL the Genital Examinations are
NORMAL. This will indicate that there was no rape/ sexual assault
committed against the respondent. Copy of the Provisional Certificate
is hereunto attached as Annex ______, and made integral part hereof.

Hence, it is safe to say that this case is not meritorious, which


ought to be dismissed.

6. One who alleges a fact has the burden of proving it, since mere
allegation is not evidence. Equally, it is a basic rule in evidence that he
who alleges must prove his case or claim by degree of evidence
required.

7. From the foregoing, it is clear that this case cannot prosper.

PRAYER

WHEREFORE, premises duly considered, the respondent most


respectfully prays that this case be dismissed for utter lack of merit.

General prayer is likewise prayed for.


IN WITNESS WHEREOF, I have hereunto affixed my signature
this _______ of ________ in Quezon City, Philippines.

JERWIN D. HERRERA
Affiant

SUBCRIBED AND SWORN to before me this _____ day of AUGUST


at QUEZON CITY, Philippines and I further certify that I have
personally examined the affiant and is satisfied that he voluntarily
executed and understood his affidavit.

Doc. No. ______


Page No. ______
Book No. ______
Series of ______

Copy Furnished:

Tiffany Cathryn G. Fabro/


John Patrick G. Fabro
No. 141 Susano Road, Barangay
San Agustin, Novaliches, Quezon City.
ATTESTATION

I, JINGLE MERRY G. GERANDOY, of legal age, Filipino citizen,


after having duly sworn to in accordance with law, do hereby depose
and say:

1. That I am the counsel of the respondent in the foregoing


entitled case;

2. That I personally conducted the foregoing counter affidavit


of the respondent;

3. That I hereby certify that I faithfully recorded the questions I


asked and the answer of the witness.

4. That I likewise certify that neither I nor any person then


present had coached the witness regarding the latter’s answer.

IN WITNESS WHEREOF, I have hereunto affixed my signature


this _____ day of ___________2020, in Surigao City.

JINGLE MERRY G. GERANDOY


Counsel of the defendant
SUBSCRIBED AND SWORN to before me, this _____day of ____
2020 in Surigao City, affiant exhibited to me his Driver’s License No.
4-80-15632 issued on September 10, 2020.

ATTY.
Doc. No. ______. Notary Public for Surigao City and Surigao Del
Norte
Page No. ______ Until December 10, 2020
Book No. ______ IBP lifetime Member No. 088516
Series of ______ PTR No. 6554392, Jan. 2, 2020
Roll of Attorney No. 52976, 3/20/19
MCLE Compliance No. VII-0036549 valid until April
2020
P. Reyes, Surigao City

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