EN BANC

[G.R. No. 128827. August 18, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO CAYAGO

y REYES, accused-appellant.

DECISION
YNARES-SANTIAGO, J.:

For killing his own wife through strangulation and with evident premeditation, appellant was
indicted for parricide.[1] He was tried and subsequently sentenced to die and ordered to pay
damages to the victims heirs.[2] The lower court judge, after making a twelve page summary of
the testimonies of the witnesses, arrived at a conclusion that appellant is guilty of parricide, in
just one short paragraph, which reads:

After considering the prosecution and the defense evidence, the Court is convinced
that the version of the defense is not credible. In his redirect examination, he admitted
that his wife was reported missing as embodied in his first sworn statement, which
had been marked in evidence as Exhibit K. Said sworn statement is entirely wrong
because his wife was not missing as mentioned by the accused, but killed her. In the
said first statement to the police, he merely wanted to mislead the police by
concocting a lie that his wife is missing, when in truth and in fact, he had killed her
and left her at the comfort room of the abandoned barangay hall, already lifeless.[3]

Culled from the evidence on record are the following facts which was condensed in the
Appellees Brief, to wit:

At about 1:25 oclock in the afternoon of August 2, 1995, SPO2 Belino Zinampan, Jr.
was at the police headquarters at Pasig City where he received the report of Rolando
Cayago that he saw the decomposing body of his wife at the abandoned barangay hall
of Santolan, Pasig City. Zinampan, SPO2 Antonio Paulite, a police photographer and
Cayago proceeded to the said abandoned barangay hall to verify the report. Thereat,
the group saw the dead and decomposing body of a woman. Zinampan requested
Cayago to identify the body and on recognizing the shoes worn by the deceased, let
out a loud cry and thereafter lost consciousness for about five minutes. Thereafter,
Cayago, in answer to Zinampans question, answered that he does not know who killed
his wife. Zinampan and Cayago then returned to the police headquarters where the
latters statement was taken by the former.
At the time Cayagos statement was being taken, Police Sr. Inspector Pajota noticed
Cayagos several inconsistent statements. Pajota subsequently instructed Zinampan,
SPO2 Paulite and SPO2 Delos Reyes to further interrogate Cayago and, who,
thereafter concluded that Cayago was reluctant and inconsistent in answering our
simple questions. Pajota then advised Cayago to undergo a polygraph examination at
Camp Crame.

On August 3, 1995, when Cayago was about to be brought to Camp Crame for a
polygraph test, he requested permission to go to the nearby church. Cayago requested
that he be accompanied by SPO2 Delos Reyes, who agreed. Thereat, Cayago admitted
to SPO2 Delos Reyes that he killed his wife Myra Cayago and was willing to give his
statement relative to said killing. SPO2 Delos Reyes and Cayago returned to the
police station and upon such information, Sr. Inspector Pajota instructed Zinampan to
secure a lawyer to assist Cayago. Zinampan then requested Atty. Reynario
Campanilla, who agreed to assist Cayago. Atty. Campanilla conferred with Cayago at
the Office of the Investigation Division. After apprising Cayago of his constitutional
rights, Cayago admitted that he killed his wife. Atty. Campanilla then advised Cayago
to personally write down his confession which Cayago did for about an hour in the
presence of Atty. Campanilla. Thereafter, with the aid of a tape recorder, requested
Cayago to read his admission. After informing Cayago of his constitutional rights
against self-incrimination, SPO2 Delos Reyes started taking down Cayagos extra-
judicial confession again in the presence of Atty. Campanilla and who signed said
statement together with Cayago.[4]*

The gravamen of the felony of parricide is the killing of any of the persons enumerated in
Article 246 of the Revised Penal Code (RPC), as amended. Its elements are:
1. a person is killed;
2. the deceased is killed by the accused;
3. the deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate
other ascendant or other descendant, or the legitimate spouse of the accused.[5] (Italics
supplied).
In the case at bar, it is clear that appellant strangulated his wife resulting to her death. This is
supported by appellants own testimony, his confession to the police and the medical findings
corroborating that she died of asphyxia by strangulation.
In his testimony, appellant claims that he embraced his wife so tight but did not notice she
had stopped breathing due to the tightness of the embrace. If it were true, however, that his
intention of embracing her was to stop her from pushing him, he would have wrapped his arms
around her body including her hands. Yet the medical findings revealed injuries on the neck
which is shown by the presence of fracture on the victims windpipe and hemorrhage inside the
windpipe.[6] The examining physician explained his findings on the victims cadaver which was
already in an advanced state of decomposition at the time it was recovered two (2) days after the
killing:
Q Based on the examination you conducted, Doctor, can you tell us what was the cause of death?
A The cause of death Maam after the internal examination is asphyxia by strangulation because of the
presence of fracture on windpipe and also the presence of hemorrhage inside the windpipe.
Q And what could have cause (sic) that injury?
A This particular finding was caused by the application of extensive pressure on the neck, anterior
aspects of the neck.
Q Like what?
A Could be manual strangulation by using a material enough to exert pressure on the neck.
Q Did you prepare a medico legal report based on the examination you conducted?
A Yes Maam.
xxxxxxxxx
Q Now Doctor, can you explain further the findings that you stated here in your medico legal report in
this portion laceration is noted at the posterior uterine wall with extrusion of the segments of the
small intestines.
A This only shows that there is laceration at the uterus and this is at the posterior portion at the back
portion of the uterus, and this means that something was inserted thru the vagina and eventually
lacerating the uterus, further examination showed that the small intestine of the
deceased/herniated or passed thru this particular lacerations and was eventually extruded thru the
vaginal opening.
Q Can you tell us Doctor what could have cause (sic) this injury?
A It is highly probable that this was caused by something hard inserted thru the vaginal opening up to
the uterus and extensive pressure was applied upon insertion of the material.
Q What do you mean by extensive pressure?
A Well, considering Maam that it created a laceration on the uterus then a pressure must be used to
cause that lacerations.
Q With that same object?
A Yes Maam.[7]
There is no indication that his wife was sick as to succumb to an immediate difficulty or
cessation of breathing. In any case, appellants testimony before the trial court is clear and
categorical that his wife died in his own hands:
Q What else happened?
A Because there were already passersby she was pushing me, I requested her to go to the abandoned
barangay hall, to have a talk.
Q What happened next?
A I thought we had settled everything when we were talking, inside the abandoned barangay hall she
still pushing me to produce money and then to stop her, I held her, embraced her.
Q What happened next?
A As I embraced her and while she was still resisting and then I was also tired that time, and my mind
turned blank and I can no longer know what happened. I can no longer recall what happened.
Q How did you hold your wife?
A I embraced her.
Q Was she in front of you?
A Yes Maam.
Q You were, you were facing with each other?
A The first, we were facing each other but when she kept on resisting she turns her back.
Q What else happened after that?
A Suddenly she was breathless already and I thought she just stopped resisiting.
Q What happened next?
A When I thought that she just stayed calm, I was, I suddenly, I was surprise (sic) she already (sic) on
my arms.
Q What else happened?
A I got afraid when she fell down I dont know what to do, I ran away and left her behind.
COURT What time did you arrive at that abandoned barangay hall?
A 11:30 o clock in the evening, your honor.
COURT What time did you run away from that abandone (sic) barangay hall?
A 12:00 oclock in the evening.
COURT Okey, proceed
ATTY. AZANZA Did you struggle?
A No Maam.
Q What did you do that time?
A I did not think of anything, I was afraid that time so I just went home.
Q When you held her tight, what do you intend to do that time?
A I just want her to be silent and to listen to me.
Q Did you box her?
A No, Maam.
Q Do you want to hurt her that time?
A No, Maam.
Q After that, what happened next if any?
A I left the place and went home at Valenzuela.
 Q What happened next?
A The following day I went to her sister, elder sister. I want to tell her everything happened but when I
arrived there, the relatives, the cousins, of my wife were there and I was afraid that they might
hurt me, so I was not able to, I left the place.
Q What else did you do if any?
A I went home. I dont know what to do. I was confused that time I could not think of anything to do, I
went to the headquarters of Pasig.
Q What happened at the head quarters?
A I told what happened I confessed everything and we took the cadaver
Q What else happened after that?
A No, more, Maam.[8]
The foregoing testimony materially corroborates appellants extrajudicial confession, even
narrating facts to the minutest detail which would have been known only to him. Thus,
55. T.:- Ano ang ginawa mo sa pagkakataong ito?
S.:- Niyakap ko po siya ng mahigpit na mahigpit hanggang sa masakal ko siya.
56. T. :- Papaano mo siya sinakal ?
S. :- Yakap-yakap po siya ng aking kaliwang kamay at sakal-sakal naman siya ng aking kanang
kamay.
57. T.:- Ano ang sumunod na pangyayari?
S.:- Namalayan ko na lamang po na nanlupaypay na siya at wala na siyang buhay at ibinaba ko na lang
siya sa semento.
58. T.:- Papaano mo naman nalaman na wala na siyang buhay?
S.:- Kinapa ko po ang kanyang dibdib at nalaman kong hindi na tumitibok ang kanyang puso.
59. T.:- Anong ginawa mo sa pagkakataong ito nang malaman mo na patay na ang asawa mo?
S.:- Natakot po ako. Ang ginawa ko ay hinubaran ko siya ng kanyang suot na pantalon,T-shirt, bra at
panty.
60. T.:- Bakit mo naman naisip na hubaran ang iyong asawa matapos mong malaman na patay na pala
siya?
S.:- Para palabasin po na hindi ako ang gumawa sa kanya noon at palabasin na siya ay ginahasa.
61. T.:-Saan mo naman inilagay ang saplot ng iyong asawa na hinubad mo?
S.:- Matapos kong punitin ang kanyang t-shirt at muli ko itong itinakip sa kanyang katawan na
nakahubad.
62. T.:- Ano ang sumunod na pangyayari?
S.:- Umalis na po ako at muli akong bumalik sa tinutuluyan kong bahay o silid sa Valenzuela.[9]
He admitted that in an attempt to confuse authorities as to the true cause of his wifes death,
appellant removed all her clothing including her panty and bra to make it appear that she was
raped. This shows the probability that the victim sustained injuries in her vaginal opening and
lacerations in her uterus, as found in the autopsy report.[10]
There is no question that the victim is appellants lawful spouse. They were married before a
judge in San Carlos City, Pangasinan on April 18, 1991 as shown by their marriage contract.[11] A
marriage certificate/contract is the best proof of the relationship between the accused and the
deceased in cases of parricide of a spouse.[12] In appellants testimony, he referred to the deceased
as his wife.[13] This constitutes a declaration of a party as to a relevant fact which may be given in
evidence against him pursuant to Section 26, Rule 130 of the Rules of Court.
Parricide is punishable with reclusion perpetua to death.[14] The higher penalty of death may
be imposed only if there is an aggravating circumstance that concurs in the commission of the
crime. Yet, the lower court judge, in imposing the death penalty, did not mention his basis for
imposing the higher penalty. This violates the constitutional requirement, reiterated in the Rules
of Court, that every decision must distinctly state the facts and the law on which it is
based.[15] When the decision of the trial court does not state the specific factual bases for the
conclusion of guilt beyond reasonable doubt reached therein but merely makes sweeping
generalizations, the same does not strictly follow the standards set by the rules on Criminal
Procedure.[16] Further, the trial judges failure to award civil indemnity in his judgment of
conviction all the more confirms his nonchalant attitude to the mandate of Section 2 of Rule 120
of the Rules of Court, which states:[17]

If it is of conviction, the judgment shall state (a) the legal qualification of the offense
constituted by the acts committed by the accused, and the aggravating or mitigating
circumstances attending the commission thereof, if there are any; (b) the participation
of the accused in the commission of the offense, whether as principal, accomplice, or
accessory after the fact; (c) the penalty imposed upon the accused; and (d) the civil
liability or damages caused by the wrongful act to be recovered from the accused by
the offended party, if there is any, unless the enforcement of the civil liability by a
separate action has been reserved or waived.

A strict compliance with the mandate of the said provision is imperative in the writing of
every decision. Otherwise, the rule would simply become a tool for speculations, which this
Court will not countenance specially in criminal cases involving the possible deprivation of
human life.
Appellants contention that the statement he gave to the police is inadmissible in evidence
because it was given without affording him the right to counsel guaranteed by the Constitution
has no merit. It is undisputed that appellant was not arrested because the authorities were not yet
aware of the crime. It was he himself who reported the incident to the police after he went to the
abandoned barangay hall two days later and discovered that his wifes body was still
there.[18] Appellant himself admitted that since he did not know what to do after seeing his wifes
relatives whom he feared for reprisal, he decided to report the matter to the Pasig police. The
right to counsel is afforded by Section 12(1), Article III of the 1987 Constitution only to
person(s) under investigation for the commission of an offense. On their way to Camp Crame,
appellant asked that he be accompanied by an officer to the Pasig Church. There, he volunteered
information to the officer on the whereabouts of his wife and stated that he is willing to put his
statement in writing.[19] Custodial rights of a person are not available whenever he volunteers
statements without being asked. He was not investigated by the authorities. In fact, after
appellant admitted to the police officer that he killed his wife, the officer told him that he will be
provided with a lawyer to assist him. In any case, during the subsequent events the investigation
in the precinct - appellant was assisted by a lawyer, namely, Atty. Campanilla. At the trial, the
latter testified that he talked to appellant, advised him of his constitutional rights and was present
when the latter wrote his extrajudicial statement admitting that he killed his wife.[20] Atty.
Campanilla even asked for appellants identification card to verify whether the signature he will
sign in his statement is his own.
On the aggravating circumstances of nighttime and uninhabited place, the Solicitor-General
posits that appellant obviously sought the time and place of the incident, which was about
midnight in an abandoned barangay hall in Santolan, Pasig City, to consummate the
crime,[21] thus, justifying the imposition of the death penalty. However, nocturnity is not
aggravating when other than the time, there is nothing in the record and even in the testimonies
of the witnesses from which it may be inferred, whether directly or indirectly, that appellant
particularly took advantage of the darkness of the night to facilitate his criminal
design.[22] Likewise, uninhabited place cannot be appreciated as an aggravating circumstance
when there is no proof that the place of commission affords a reasonable possibility for the
victim to receive some help.[23] All that was mentioned is that both appellant and his wife went to
his aunt at about 11 oclock in the evening to borrow money, but was ashamed to wake her up
because it was already too late in the night. Unable to get money, the victim started pushing the
appellant asking him to produce money. He invited her to the abandoned barangay hall to talk.
There she kept on pushing him. He embraced her so tight that she suddenly died. [24] The
foregoing may prove that he indeed killed her, but it does not in any case show that he purposely
sought the night and the place to kill her. Aggravating circumstances must be established with
the same quantum of proof beyond reasonable doubt as fully as the crime itself and any doubt as
to their existence must be resolved in favor of the accused.[25] The Court fails to see any logical
connection in the Solicitor-Generals argument that appellants reporting that his wife was missing
to the police the next day strengthens the view that the two aggravating circumstances concurred
in the killing. Such reporting may have been done to divert attention from his culpability and
create in the mind of the authorities a doubt as to why he would report a missing wife when all
the while he knew where she was, but certainly not to show that he took advantage of nighttime
and the uninhabited place.
Accordingly, the Court does not agree with the trial courts imposition of the death penalty
and the Solicitor Generals recommendation for its affirmance. Pursuant to Article 63 of the
Revised Penal Code, when the penalty provided for by law are two indivisible penalties and there
is neither mitigating nor aggravating circumstance, the lower penalty shall be
imposed.[26] Forthwith, the death penalty imposed by the court a quo must be reduced to the
indivisible penalty of reclusion perpetua.[27]
As for the civil aspect, the judgment of civil liability in favor of the heirs of the deceased is
in consonance with Article 100 of the RPC which provides that Every person criminally liable is
also civilly liable. The award of the civil indemnity for cases not calling for the application of the
death penalty is fixed by current jurisprudence at P50,000.00,[28] no other proof is necessary other
than the fact of the death of the victim and the accuseds responsibility therefor.[29] Moral damages
can be awarded only when the same is supported by evidence in the records.[30] There is nothing
in the testimony of the victims sister showing that she or her heirs are entitled to that damages.
WHEREFORE, appellants conviction for parricide is AFFIRMED, subject to the
MODIFICATION that the penalty is reduced to reclusion perpetua. He is also ORDERED TO
PAY P50,000.00 as civil indemnity to the children of the victim, in addition to the award of
P26,000.00 as actual damages. The award of moral damages is deleted for lack of evidence.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.

THIRD DIVISION

PEOPLE OF G.R. No. 179499

THE PHILIPPINES,
Plaintiff-Appellee, Present:

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
- versus - CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

TORIBIO JABINIAO, JR. and Promulgated:

JOHN DOE,
Accused-Appellants. April 30, 2008
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
CHICO-NAZARIO, J.:

This is an appeal from the Decision[1] dated 19 July 2006 of the Court of
Appeals in CA-G.R. CR-HC No. 00334-MIN affirming with modification the
Decision of the Regional Trial Court (RTC) of Cagayan de Oro City, Branch 25,
finding appellant Toribio Jabiniao, Jr., guilty of the crime of Robbery with
Homicide.

On 10 March 1999, an Amended Information was filed against appellant

Jabiniao before the RTC of Cagayan de Oro City, charging him with the crime of
Robbery with Homicide, penalized under Article 294 in relation to Article 14 of
the Revised Penal Code, as amended by Republic Act No. 7659, allegedly
committed as follows:

That on August 27, 1998 at about 1:00 oclock dawn at Cugman, Cagayan
de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping with one
another being both armed with handguns and with intent to gain and after entering
without permission into the dwelling of the offended party Maria Divina Pasilang
where she was sleeping together with her husband Ruben Pasilang and their minor
children and by means of force, threat, intimidation and violence with the use of
their handguns by pointing the same to the offended party and her husband who
were awakened after they were kicked by co-accused Toribio Jabiniao, Jr., the
accused demanded for their money and after finding it the accused did then and
there willfully, unlawfully and feloniously, with intent to gain, take, rob and carry
away the money of the offended party and her husband amounting to more or
less P2,000.00 to their damage and prejudice which the couple intended to use for
the hospitalization of their son who was then sick with dengue fever and thereafter
before fleeing with the money, the herein accused, in pursuance of their conspiracy
did then and there willfully, unlawfully and feloniously, with evident
premeditation, taking advantage of their superior number and strength and with
intent to kill, by reason and on the occasion of the robbery, treacherously attack
the victim Ruben Pasilang by shooting him with the use of their guns thereby
inflicting a mortal gunshot wound on the victim which cause[d] his untimely
death, to the great damage and prejudice of the offended party, the victim and his
heirs.

That the commission of the crime was also attended by the aggravating
circumstance of nightime purposely sought by the accused and by committing it
inside the dwelling of the victim.
 The killing of Ruben Pasilang is committed with the use of an unlicensed
firearm.

Contrary to Article 294 in conjunction with Article 14 of the Revised Penal

Code as amended by R.A. No. 7659.[2]

Appellant Jabiniao was arraigned on 12 March 1999, wherein he pleaded

Not Guilty to the charge. The other accused remains unidentified. Trial on the
merits ensued.

The prosecution presented as its witnesses Maria Divina Pasilang, Ireneo

Haclad, SPO1 Bladimer Fabre Agbalog, SPO4 Hilario Balensola, PO1 Fernando
Edoria, Dr. Efren Celeste, Dawn Florendo, Atty. Eleuteria Algodon and Rolando
Jabiniao.

Private complainant Maria Divina Pasilang testified that at around 1:00

a.m. of 27 August 1998, she and her husband, the deceased Ruben Pasilang, were
sleeping in their house in Cugman, Cagayan de Oro City. They were awakened
when Maria Divina felt someone kick her thighs. When she opened her eyes, she
saw appellant Jabiniao, who was short and muscular, wearing a pair of short pants
but without any shirt on, with a holster on his shoulder and a bonnet or ski mask on
his face. He had a masked companion who stayed at the door outside their house,
acting as a lookout. Appellant Jabiniao pointed his gun at Maria Divina and Ruben
and demanded money from them. They were not able to say a word as they were
both trembling in fear. Appellant Jabiniao ransacked the drawer for money and
other belongings and took P2,000.00 and Maria Divinas shoulder bag.Appellant
Jabiniao removed his mask, revealing his face.

Appellant Jabiniao approached Maria Divina, raised her duster and stroked
her thighs. She mercifully begged not to be touched in exchange for all their
belongings. Ruben likewise pleaded and told appellant Jabiniao that he could take
all their things. Appellant Jabiniao, however, continued stroking Maria Divinas
thigh. He then stood up and cut the wire of an electric fan which he used to tie
Rubens feet. Appellant Jabiniao then proceeded to tie Rubens hands with the strap
of Maria Divinas bag, but Ruben resisted and was able to free his hands from
appellant Jabiniaos hold. Appellant Jabiniao ran towards the door. Ruben crawled
and knelt towards the door and closed it. A few seconds later, gunshots were fired
from the outside which pierced through the door, hitting the chest of Ruben. Maria
Divina heard appellant Jabiniao and his masked companion pass through the gate
and flee the area. Maria Divina went to Ruben and embraced him. Ruben said:
Mards, I am going to die because of the wound. She replied, Do not succumb to the
pain because you still have children who need your care. Maria Divina shouted for
help. Her nearest neighbor, Nang Emie, answered: We are afraid, Day, to help
because of the gunfire. Ruben died in Maria Divinas arms.[3]

Appellant Jabiniao was arrested on 14 September 1998. The following day,

on 15 September 1998, policemen asked Maria Divina to identify her
assailant. Maria Divina immediately identified appellant Jabiniao.

Maria Divina also testified that she misses her husband and was worried
about the future of her children. Ruben was earning P200.00 a day as a foreman of
a building contractor. She spent P500.00 every night for ten days as wake
expenses, P6,000.00 for the 9th day rites, and P1,000.00 for the 40th day rites. She
also paid P1,800.00 for the coffin and P3,000.00 for the tomb.[4]

Barangay Tanod Ireneo Haclad testified that on 14 September 1998, he

accompanied the police officers who served the warrant of arrest on appellant. At
around 3 p.m. of the same day, upon seeing the policemen, appellant tried to pull
his gun but was deterred when one of the policemen fired two warning shots and
ordered him to stop and drop his gun. A policeman then tackled and handcuffed
him. The policemen retrieved from appellant a black bonnet or ski mask, a holster
and a paltik .38 caliber gun with five bullets and one empty shell. SPO1 Bladimer
Fabre Agbalog corroborated this account.

SPO4 Hilario Balensola Rosilla, Jr., senior police officer of the Firearms and
Explosives Unit of the Philippine National Police, testified to his 9 March
1999 Certification that appellant was not among those included in the list of
registered firearm holders, nor was he issued a permit to carry a firearm outside of
residence.

PO1 Fernando Edoria, who was assigned to the Warrant and Subpoena
Section and the Central Record Section of the PNP, Cagayan de Oro City, testified
that his office issued a Certification dated 20 May 1999 stating that appellant
Jabiniao has three criminal records, as follows: (1) Robbery with Homicide [CC Nr
98-953]; (2) Murder [CC Nr 96-374]; and (3) Illegal Possession of Firearms [CC
Nr 96-10-40-96].

Dr. Efren Celeste, Medical Officer IV of the City Health Department of

Cagayan de Oro City, issued a Death Certificate dated 1 September 1998 stating
that Rubens causes of death are the following:
 CAUSES OF DEATH

Immediate Cause: a. Cardio Respiratory Arrest

Antecedent Cause: b. Hypovolemic Shock
Underlying Cause: c. Gunshot wound (L) chest[5]

Social Security System employee Dawn Florendo testified that Maria Divina
filed a funeral claim in said agency. Public Attorneys Office Officer-in-Charge
Atty. Eleuteria Algodon testified that she subscribed to appellant Jabiniaos
Counter-Affidavit wherein the latter declared that he owned the bonnet taken by
the police officers, but used the same during harvest time to avoid scabies and for
the cold weather at night.

Appellant Jabiniaos brother, Rolando Jabiniao, testified that appellant

Jabiniao was not in his house on 26 August 1998 or within the vicinity of
Mintugsok, Cugman. He did not know where appellant Jabiniao was when the
crime was committed.

The defense, on the other hand, presented as its witnesses appellant Jabiniao
himself, Leonardo Gacang and Felix Ramos.

Appellant Jabiniao, a hollow block maker and a resident of Dao, Gusa,

Cagayan de Oro City, denied any involvement or participation in the crime. He
claimed that on 26 August 1998, he was in the house of his mother at Mintugsok,
Cugman, which is only five meters away from the house of his brother, Rolando
Jabiniao. He was sick at that time and was attended to by his mother. The next day,
on 27 August 1998, he and a certain Eusebio Riyas removed corn from the kernel
at around 1:00 a.m. On 14 September 1998, while he was again removing corn
from the kernel, he heard three warning gunshots and was surprised to be arrested
by the police in the presence of his brother, Rolando Jabiniao. Appellant Jabiniao
claims that complainant Maria Divina was just coached by the police officers when
the latter pointed to him as the assailant. This time around, he denied possession of
a bonnet and a firearm.

Leonardo Gacang, a tuba gatherer, farmer and hilot, claims that on 26

August 1998, Toribio Jabiniao, Sr., the father of appellant Jabiniao, fetched and
brought him to Mintugsok, Cugman, to heal appellant Jabiniao, who was having
stomachache. He observed that appellant Jabiniao could not stand because of his
illness. Gacang administered hilot on appellant Jabiniao and gave the latter a
concoction extracted from boiled young leaves of guava, santol and kaimito for
him to drink. He left the house at around 4:00 p.m.

Felix Ramos, former neighbor of appellant Jabiniao, testified that on 26

August 1998, at around 9:00 a.m., he went to his farm in Mintugsok,
Cugman. That afternoon, he went to the nearby house of Rolando Jabiniao to ask
for water. When he was inside, he saw appellant lying flat on the floor, pressing a
pillow to his stomach. A few minutes later, Toribio Jabiniao, Sr. arrived. Felix left
the house when Gacang started to administer hilot to appellant Jabiniao.

On 19 April 2000, the trial court found appellant Jabiniao guilty beyond
reasonable doubt of the crime of Robbery with Homicide and imposed upon him
the death penalty:
IN LIGHT OF THE FOREGOING consideration[s], judgment is hereby
rendered finding the accused Toribio Jabiniao, Jr. guilty beyond reasonable doubt
as charged of the crime of Robbery with Homicide as principal by direct
participation and in conspiracy with John Doe with the following aggravating
circumstances of evident premeditation and taking advantage of superior strength
with the following aggravating circumstances:

a.) use of unlicensed firearm;

b.) the crime be committed in the dwelling of the victims;
c.) night time purposely sought;
d.) the crime be committed with treachery;

and sentences the accused Toribio Jabiniao, Jr. to death by lethal injection and to
indemnify the offended party the sum of Seventy-Five Thousand Pesos
(P75,000.00) and to pay moral damages to the offended party, the sum of
Seventy-Five Thousand Pesos (P75,000.00) and to pay actual damages of Two
Thousand Pesos (P2,000.00) and Twelve Thousand Pesos for funeral expenses
and temperate damages for wake and 9 days prayer in the sum of Six Thousand
Pesos (P6,000.00) and to pay the cost.

The accused is however entitled to be credited in the service of his

sentence consisting of deprivation of his liberty with the full time during which he
has undergone preventive imprisonment.[6]

The trial court found the testimonies of the prosecution witnesses credible,
particularly the clear and positive identification of appellant Jabiniao by Maria
Divina. In so doing, the trial court considered the account of Maria Divina of the
open electric light, the removal of the bonnet, and the mashing of her thighs by
appellant Jabiniao to be credible and trustworthy. The trial court likewise rejected
Jabiniaos alibi that he was ill and was in his brother Rolandos house. Said defense
was belied by Rolando himself who testified otherwise.

Appellant Jabiniao appealed the Decision of the trial court to the Court of
Appeals. On 19 July 2006, the Court of Appeals affirmed with modification the
findings of the trial court, to wit:
WHEREFORE, premises considered, the assailed Decision dated April 19,
2000 of the Regional Trial Court, Branch 25, Cagayan de Oro City is hereby
AFFIRMED with MODIFICATION to the effect that appellant is found guilty
beyond reasonable doubt of the crime of Robbery with Homicide and is sentenced
to suffer the imprisonment of reclusion perpetuain lieu of the death penalty
pursuant to Section 2(a) of R.A. 9346. Appellant is hereby directed to pay the
heirs of the victim P75,000.00 as civil indemnity, P50,000.00 as moral
damages, P14,000.00 as actual damages, P25,000.00 as exemplary damages
and P6,000.00 as temperate damages.[7]

Appellant Jabiniao filed the present appeal, submitting the same Brief and
Assignment of Errors it had presented before the Court of Appeals. His
Assignment of Errors reads:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-

APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME
CHARGED.

II

GRANTING THAT THE ACCUSED-APPELLANT IS GUILTY, THE COURT

A QUO GRAVELY ERRED IN CONVICTING HIM FOR THE COMPLEX
CRIME OF ROBBERY WITH HOMICIDE SINCE THE CRIMES
COMMITTED ARE TWO SEPARATE CRIMES OF SIMPLE ROBBERY AND
HOMICIDE WHICH WILL ENTITLE HIM TO THE IMPOSITION OF TWO
DIVISIBLE PENALTIES FOR EACH OF THE TWO FELONIES
CORRESPONDINGLY.[8]

Whether the guilt of appellant Jabiniao

was proved beyond reasonable doubt
 In asserting that his guilt has not been proven beyond reasonable doubt,
appellant Jabiniao claims the contention of Maria Divina that the perpetrator
removed his mask when he was searching the cabinet of the victim was tainted
with falsehood, arguing that a robber who intended to hide his face would not
conveniently remove his mask to reveal his identity. Appellant Jabiniao likewise
points to the portion in Maria Divinas testimony wherein the robber panicked and
ran away when Ruben was able to untie his hands.Appellant Jabiniao argues that
this is incredible, as Rubens feet had still been tied with a cord at that time, while
the assailant was armed with a gun. Appellant Jabiniao thus offers his theory that
he was pinned down by police officers for already facing several other criminal
charges.

We are not convinced.

Unable to find inconsistencies in the prosecutions account of the alleged

crime, appellant Jabiniao desperately seeks the indulgence of this Court by
invoking what it claims to be natural reactions to a given situation. He claims that
it is incredible for an assailant who had purposely concealed his identity with a
bonnet or ski mask to remove the same while still in the presence of the
victims. He claims that it is incredible for an assailant with a gun to panic when his
nemesis was tied at the feet.

To a certain extent, a logical and methodical assailant having nerves of steel

would probably not do what the alleged assailant in the case at bar did. But while
we can agree that an assailant who had purposely concealed his identity with a ski
mask would probably not remove the same while still in the presence of the
victims, and that an assailant with a gun would probably not panic while his
nemesis was tied at the feet, we cannot say that an account claiming the contrary is
incredible.

There is no reason why the oft-quoted axiom that there is no standard form
of behavior when one is confronted with a shocking incident [9] should not apply to
everyone present in such incident. Furthermore, a reading of Maria Divinas
account shows that she and Ruben appeared to be compliant to all the wishes of the
assailant at the start. At the time the assailant allegedly removed his ski mask, said
assailant appeared to be in complete control and had absolutely no reason to
panic. Ruben even told the assailant to take everything he can.[10] The assailant
could have been lured to a false sense of security which allowed him to remove an
uncomfortable piece of clothing. On the other hand, Rubens attempt to untie
himself from Maria Divinas bags strap was the very first resistance offered by the
victims. Rubens actually being able to untie himself would certainly be a reason
for the assailant to panic after he had thought he was in complete control. As stated
by the Court of Appeals, Maria Divinas testimony was clear and straightforward,
and survived a grueling cross-examination. Thus, on cross, Maria Divina testified:

CROSS EXAMINATION:

ATTY. GIOVANNI NAVARRO:

Q: You did not really see the face of the person who ransacked your plastic
cabinet, Ms. Witness?
A: I was able to see the face of the person who ransacked my plastic cabinet
because he lowered down the bonnet he was wearing.

Q: So you were not afraid to look at him at that time?

A: I was not afraid to look at his face because I wanted to identify his face.

xxxx

Q: When you arrived at the OKK for the second time, you saw Toribio Jabiniao
already being investigated by the police?
A: When I arrived at the OKK, Toribio Jabiniao was not yet investigated by the
policemen. He was still inside the mini cell.

Q: Was he alone inside the mini cell?

A: Toribio Jabiniao was talking with a small boy at the cell.

Q: What did you do when you saw him?

A: I looked at him directly in order to find out whether his face and his built was
the very person whom I saw on August 27, 1998.

xxxx

Q: When you went to the OKK and saw Toribio Jabiniao, Jr. inside the mini-cell,
you were with your parents-in-law, is that correct?
A: When I went to the OKK, I was with my parents-in-law, but I was the first one
who entered the cell.

Q: But, when you were in the OKK, your parents-in-law told you that Toribio
Jabiniao, Jr. was the one who robbed your neighbor in Cugman?
A: At that time, my parents-in-law did not tell me about that.

Q: But, you noticed that your parents-in-law also saw Toribio Jabiniao, Jr. inside
the mini cell?
 A: My parents-in-law saw Toribio Jabiniao only after I shouted, he is really the
one who killed my husband and he is really the one who entered my house
because my parents-in-law entered and get me from the mini cell.[11]

Maria Divinas testimony was clear, direct, and was without

inconsistencies. Appellant Jabiniao, however, countered this positive identification
with denial and alibi. As it is, denial and alibi are already inherently very weak in
the face of a positive identification by a credible witness. Inconsistency in the
defenses evidence and credible contrary evidence presented by the prosecution
sealed appellant Jabiniaos fate. We quote with approval the following reasoning of
the Court of Appeals:
Herein appellant declared that he was staying at the house of his mother,
located at the same barangay with that of private complainants house, removing
corn from its kernel when the crime was committed. It was not, therefore,
physically impossible for him to be at the scene of the crime considering the
accessibility of his place to that of the victims. It also bears stressing that his
testimony was inconsistent with that of his own witness, Felix Ramos, who
testified that appellant was allegedly not in his mothers house but in the house of
his brother. Appellants brother, however, categorically declared that appellant
was not in his house at that time nor within the vicinity of Mintugsok,
Cugman. Furthermore, appellant, at another instance, posited that he was sick at
that time. This Court wonders how a sick person could be physically fit enough
to stay awake at up to 1:00 oclock in the morning and remove corn from its
kernel. It is rather contrary to human behavior and experience since the natural
tendency of a sick person is to rest. Indeed, the same is but a flimsy excuse which
deserves no merit. For evidence to be believed, it must not only proceed from the
mouth of a credible witness, it must be credible in itself.

We find no compelling reason to overturn the factual findings of the court

a quo. Findings of the trial court are accorded not only the highest respect, but
also finality, unless some weighty circumstances have been ignored or
misunderstood which could alter the result and affect the judgment to be
rendered. The same is not present in the case before Us.[12]

Whether the crime was that of a complex

crime of Robbery with Homicide or two
separate crimes of (1) Simple Robbery
and (2) Homicide.

According to appellant Jabiniao, assuming arguendo that he was the real

perpetrator, his conviction for the special complex crime of Robbery with
Homicide is erroneous.He claims that since he had already run away from the
house of the victim when he fired the gun and accidentally hit the victim, the
robbery had already been accomplished when the killing occurred.

We disagree.

The crime of Robbery with Homicide is punished under Article 294 of the
Revised Penal Code, which provides, in part:
Art. 294. Robbery with violence against or intimidation of persons
Penalties. Any person guilty of robbery with the use of violence against or
intimidation of any person shall suffer:

1. The penalty of reclusion perpetua to death when by reason or on

occasion of the robbery, the crime of homicide shall have been committed or
when the robbery shall have been accompanied by rape or intentional mutilation
or arson.

Homicide is said to have been committed by reason or on the occasion of

robbery if, for instance, it is committed to (a) facilitate the robbery or the escape of
the culprit; (b) to preserve the possession by the culprit of the loot; (c) to prevent
discovery of the commission of the robbery; or (d) to eliminate witnesses to the
commission of the crime.[13]In Robbery with Homicide, so long as the intention of
the felon is to rob, the killing may occur before, during or after the robbery. It is
immaterial that death would supervene by mere accident, or that the victim of
homicide is other than the victim of robbery, or that two or more persons are
killed. Once a homicide is committed by reason or on the occasion of the robbery,
the felony committed is the special complex crime of Robbery with Homicide.[14]

In the case at bar, appellant Jabiniao demanded money from Maria Divina
and Ruben from the very start, plainly manifesting his and his companions original
intent to commit robbery. It was only after Ruben freed his hands when appellant
Jabiniao panicked, ran outside the door and fired gunshots from the
outside. Clearly, appellant Jabiniao fired the shots in order to facilitate his escape
and eliminate his victims who could become witnesses against him and his
companion.

We agree with both lower courts that the aggravating circumstances of (a)
use of unlicensed firearm; (b) dwelling; and (c) treachery, which were alleged in
the information, were established. With the presence of these aggravating
circumstances, the penalty imposed should be the maximum, which is death.
 However, in view of the enactment of Republic Act No. 9346 or the Act
Prohibiting the Imposition of Death Penalty on 24 June 2006, the penalty thereat
that should be meted must be reduced from death to reclusion perpetua without
eligibility for parole.

Whether courts a quo correctly ruled on

the civil liabilities of appellant Jabiniao.

It is settled that in a criminal case, an appeal throws the whole case open for
review, and it becomes the duty of the appellate court to correct such errors as may
be found in the judgment appealed from, whether they are made the subject of the
assignment of errors or not.[15]

As to damages, when death occurs due to a crime, the following may be

recovered: (1) civil indemnity ex delicto for the death of the victim; (2) actual or
compensatory damages; (3) moral damages; (4) exemplary damages; (5) attorneys
fees and expenses of litigation; and (6) interest in proper cases.[16]

The amount of P75,000.00 for civil indemnity awarded by the trial court as
affirmed by the Court of Appeals, is sustained. The award for civil indemnity is
mandatory and is granted to the heirs of the victim without need of proof other than
the commission of the crime.[17] The amount of P75,000.00 as civil indemnity is
awarded only if the crime is qualified by circumstances which warrant the
imposition of the death penalty.[18] Though the penalty imposed on appellant was
reduced to reclusion perpetua, the civil indemnity to be awarded remains
at P75,000.00.

The Court of Appeals however modified the awards for moral damages and
exemplary damages. The Court of Appeals reduced the trial courts award of moral
damages from P75,000.00 to P50,000.00. We agree with this change, pursuant to
current jurisprudence.[19] As held by the Court of Appeals, moral damages are
awarded in cases of violent deaths even in the absence of proof of mental and
emotional suffering of the victims heirs, because the violent and sudden death of a
loved one invariably and necessarily brings about emotional pain and anguish on
the part of the victims family.[20]

We also agree with the award of exemplary damages in the amount

of P25,000.00. Exemplary damages may be imposed when the crime is committed
with one or more aggravating circumstances.[21] As held above, appellant Jabiniaos
crime was aggravated by (1) the use of an unlicensed firearm; (2) commission of
the crime in the dwelling of the victims; and (3) treachery.

The Court of Appeals, however, should have added an award for loss of
earning capacity. Maria Divina testified that Ruben was earning P200.00 a day
prior to his death.[22] While Maria Divina failed to substantiate this amount, we
held in the similar case of People v. Laut[23] that:

As to the award of damages for loss of earning capacity, Erlinda testified

that her husband Tomas was earning P600.00 a week prior to his death. She
however failed to produce evidence to substantiate her claim. Nonetheless, Art.
2206 of the Civil Code provides, "the defendant shall be liable for the loss of the
earning capacity of the deceased, and the indemnity shall be paid to the heirs of
the latter x x x unless the deceased on account of permanent disability not caused
by the defendant had no earning capacity at the time of his death." In the present
case, as there is no indication that the deceased had no earning capacity at the
time of his death due to a permanent physical disability, we are inclined to give
credit to Erlindas testimony. Based on her computation, Tomas was earning an
annual income of P28,800.00 counted at the rate of P600.00 a week for forty-eight
(48) weeks. To this amount would be deducted his necessary and incidental
expenses estimated at fifty percent (50%), leaving a balance of P14,400.00. His
net annual income would then be multiplied by his life expectancy using the
following formula: 2/3 x 80 40 (age of the victim at time of death). Tomas can
therefore be said to have a life expectancy of twenty-six (26) years. All taken, an
award of P374,400.00 for loss of earning capacity is just and proper.

The daily income of P200.00 is equivalent to a gross annual

income P48,000.00[24] The formula[25] for unearned income is as follows:

Life expectancy x [Gross Annual Income (G.A.I.) less Living expenses (50%
G.A.I.)]

where life expectancy = 2/3 x (80 - age of the deceased )

Thus, the unearned income of Ruben, who was 29 years old[26] at the time of
his death, is computed as follows:

Unearned income = 2/3 (80-29)(P48,000.00-P24,000.00)

= 2/3 (51)(P24,000.00)
= P816,000.00

As to the P2,000.00 taken by appellant, the latter is ordered to return the

same by way of restitution. As regards the funeral and burial expenses, the trial
court found that the prosecution was able to substantiate only the amount
of P12,000.00. In People v. Garin, we had this to say:

In support of the claim for actual damages, the victims mother testified
that she spent a total [amount of] P31,800.00 for the funeral service and other
expenses during the wake. To justify an award of actual damages, it is necessary
to prove with a reasonable degree of certainty, premised upon competent proof
and on the best evidence obtainable by the injured party, the actual amount of
loss. Of the expenses allegedly incurred, the only receipt presented by the
prosecution was for the payment made to St. Matthew Funeral Homes in the
amount of P12,500.

However, in the case of People v. Dela Cruz, it was held that when actual
damages proven by receipts during the trial amount[s] to less than P25,000, as in
the present case, the award of temperate damages for P25,000 is justified in lieu
of actual damages for a lesser amount. This Court ratiocinated that it was
anomalous and unfair that the heirs of the victim who tried but succeeded in
proving actual damages amounting to less than P25,000 would be in a worse
situation than those who might have presented no receipts at all but would be
entitled to P25,000 temperate damages.[27]

In light of our ruling in Garin, in lieu of actual damages for funeral and
burial expenses, we award the amount of P25,000 as temperate damages.

WHEREFORE, the instant appeal is DENIED. The Decision of the Court

of Appeals dated 19 July 2006 in CA-G.R. CR-HC No. 00334-MIN
is AFFIRMED with MODIFICATION. Appellant Toribio Jabiniao, Jr., is
found GUILTY of the crime of Robbery with Homicide as defined in Article 294
of the Revised Penal Code, as amended. The proper imposable penalty would have
been death. However, pursuant to Republic Act No. 9346, appellant is sentenced to
suffer the penalty of reclusion perpetua without eligibility for parole. Appellant is
ordered to pay the heirs of Ruben Pasilang the amounts of P75,000.00 as civil
indemnity; P50,000.00 as moral damages; P25,000.00 as exemplary
damages; P25,000.00 as temperate damages; P816,000.00 as indemnity for loss of
earning capacity; and P2,000.00 as restitution for the amount taken from the
victim. No costs.
THE PEOPLE OF THE PHILIPPINES, appellee, vs. BIENVENIDO DE LA
CRUZ Y MAHUSAY, appellant.

DECISION
CORONA, J.:

On appeal is the decision, dated August 23, 1999, of the Regional Trial
[1]

Court of Malaybalay, Bukidnon, Branch 8, in Criminal Case No. 8381-97,

convicting herein appellant Bienvenido de la Cruz y Mahusay of murder and
sentencing him to reclusion perpetua and to indemnify the heirs of the victim
in the sum of P50,000.
The information charging appellant of murder, defined and penalized
under Article 248 of the Revised Penal Code, as amended by RA 7659, read:

That on or about the 25th day of December, 1996, in the afternoon, at the road of sitio
Narolang, barangay Laligan, municipality of Valencia, province of Bukidnon,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to kill by means of treachery and evident premeditation, armed
with a bolo, did then and there wilfully, unlawfully and criminally attack, assault and
stab ALFREDO TIMGAS, hitting and inflicting upon his person the following
wounds, to wit:

- stabbed (sic) wound

which caused the instantaneous death of ALFREDO TIMGAS to the damage and
prejudice of the legal heirs of ALFREDO TIMGAS in such amount as may be
allowed by law. [2]

Arraigned on April 22, 1997, appellant, assisted by counsel, pleaded not

guilty. Thereafter, trial on the merits ensued.
The facts, as found by the trial court, follow.
A cockfight was held in the afternoon of December 25, 1996 in Sitio
Narolang, Barangay Laligan, Valencia, Bukidnon. One of the gamecocks
belonged to Alfredo Timgas and its gaff was installed by his brother-in-law,
herein appellant Bienvenido de la Cruz. Unknown to Alfredo, however,
[3]

Bienvenido placed his bet on the gamecock of his opponent. When Alfredos
gamecock won, he was told to collect the bet from Bienvenido. Feeling
betrayed, Alfredo confronted his double-dealing brother-in-law and a fistfight
ensued between them. The timely intervention of cooler heads pacified and
prevented them from inflicting serious injuries on each other. [4]
 Alfredo later decided to play billiards near a basketball court. On the other
hand, Bienvenido went home but returned shortly thereafter with a bolo and
headed towards where Alfredo was. A friend warned Alfredo of danger as
Bienvenido was by then only about ten meters away. Alfredo tried to run away
but, to his misfortune, he tripped on grass called mani-mani.Bienvenido
caught up with him and stabbed him near the right armpit, penetrating his
stomach. Bienvenido then fled, leaving his bolo impaled in the victims torso. [5]

In his defense, Bienvenido claimed that he was requested by the victims

brother, Agustin, to install the gaff on the gamecock. After Alfredo won the
cockfight, he invited Bienvenido to a drink but the latter refused. Alfredo got
mad and started punching him. Alfredo stopped only after Bienvenido fell to
the ground. At that instance, a certain Oning Dagayday approached him and
advised him to leave immediately as Alfredos brothers might get even with
him. He noticed that Oning was holding a bloodied bolo and saw Alfredo
[6]

grasping his blood-soaked armpit. He then hurried to the house of barangay

councilor Ignacio de la Cruz who accompanied him to the barangay captain to
seek protection. From there, they proceeded to the police station to
surrender. [7]

On August 23, 1999, the trial court rendered a decision, the dispositive
portion of which read:

WHEREFORE, judgment is hereby rendered, finding accused Bienvenido de la Cruz

GUILTY beyond reasonable doubt of the offense of murder as qualified by treachery
punishable under Republic Act No. 7659. Accordingly, he is sentenced to suffer the
penalty of reclusion perpetua and to indemnify the heirs of his victim Alfredo Timgas
the sum of P50,000.00

SO ORDERED. [8]

In this appeal, Bienvenido de la Cruz raises the following assignments of

error:
I

THE TRIAL COURT ERRED IN NOT APPRECIATING THE ACCUSED-

APPELLANTS SINCERITY AND GOOD FAITH IN SURRENDERING HIMSELF
TO KAGAWAD IGNACIO DE LA CRUZ AND THE POLICE AUTHORITIES
WHICH ONLY SHOWS THAT HE IS REALLY INNOCENT OF THE CRIME
CHARGED.

II
EVEN ASSUMING THAT HE IS INDEED GUILTY OF THE CRIME CHARGED,
ACCUSED-APPELLANTS ACT OF UNCONDITIONALLY SURRENDERING
HIMSELF TO THE POLICE AUTHORITIES ENTITLES HIM TO THE
MITIGATING CIRCUMSTANCE OF VOLUNTARY SURRENDER UNDER
ARTICLE 13(7) OF THE REVISED PENAL CODE, AS AMENDED, WHICH THE
COURT A QUO ERRONEOUSLY FAILED TO APPRECIATE.

III

THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE KILLING OF

THE HEREIN VICTIM WAS ATTENDED WITH TREACHERY. [9]

Appellant contends that: (a) the trial court overlooked the fact that he
surrendered voluntarily to the authorities, hence, this mitigating circumstance
should have been appreciated in his favor; (b) the fact that he did not escape
clearly indicated his innocence for, had it been otherwise, he would not have
been confident enough to surrender and (c) assuming that he was guilty of
killing the victim, treachery was erroneously appreciated by the trial court
since prosecution witnesses Agustin Timgas and Ricky Aldion testified that
the victim was forwarned of the impending attack and, in fact, had the chance
to flee.
We affirm appellants conviction for killing Alfredo Timgas. His bare denial
cannot prevail over the positive identification and eyewitness account of the
crime by Agustin Timgas, elder brother of the victim, during the trial. Agustin [10]

testified on the subsequent events that transpired after Alfredo and

Bienvenido had been pacified:
Q You said Bienvenido de la Cruz got a bolo, did you see the bolo?
A Yes, I saw.
Q Now did he carry the bolo?
A The bolo was inserted on its scabbard and which was tied around his waist.
Q What did Bienvenido de la Cruz do next after having a bolo?
A He ran towards the basketball court.
Q And at the basketball court, what did he do?
A He unsheathed his bolo and thrust (sic) the bolo towards Alfredo who ran away.
Q When Alfredo ran away, what happened to him?
A Bienvenido de la Cruz chased him and because Alfredos feet was (sic) trapped in
grass called mani-mani he fell down and when he was about to rise up Bienvenido
thrust (sic) his bolo to the body of Alfredo.
Q Was Alfredo hit?
 A Yes, Sir.
Q Where was he hit?
A Here. (witness pointing to his right armpit)
Q You said that it exited here, where?
A The point of the bolo exited here. (witness pointing to the left side of his stomach)
Q Will you please demonstrate to the Honorable Court what was the actual position
of Alfredo Timgas when he was stabbed by Bienvenido de la Cruz?
A When he was about to rise up on this position. (witness demonstrating this position
by bending his body, being supported by his two feet and his two hands, then his
right foot was placed slightly behind his left foot)
Q After Bienvenido de la Cruz hit Alfredo Timgas hitting at (sic) his right armpit, the
bolo penetrated at (sic) his left side, what did Bienvenido de la Cruz next do?
A He kicked Alfredo Timgas for three times and then ran towards Pagotpot.[11]

Agustins clear and detailed testimony was fully corroborated by Ricky

Aldion who testified that he was among the persons who separated Alfredo
and Bienvenido during their initial scuffle. Thereafter, he accompanied Alfredo
to the billiards table near a basketball court while the appellant went
home. Subsequently, the appellant returned with a bolo. Ricky warned Alfredo
that the armed appellant was approaching. Alfredo tried to run away but was
pursued and killed by the appellant with his bolo. [12]

The presence of these two prosecution witnesses at the crime scene was
never disputed by the defense. In fact, appellant disclosed that it was Agustin
who requested him to tie the gaff on Alfredos gamecock. The fact that [13]

Agustin happened to be the brother of the victim did not diminish his credibility
as an eyewitness. The defense failed to impute any improper motive that
could have impelled Agustin to testify falsely against the appellant. We thus [14]

agree with the trial court that:

The two prosecution witnesses rendered a trustworthy and a credible
account of the criminal incident. The fact that witness Agustin Timgas is the
older brother of the victim did not, in any way, make his testimony less worthy
of belief. As a matter of fact, the spouse of the accused is his sister,
too. Moreover, the second prosecution witness, Ricky Aldion, convincingly
corroborated Agustin Timgas in all material points. Verily, with the clear and
positive testimonies of the prosecution witnesses, the feeble disavowal of the
accused scarcely merits consideration. To be sure, his version of the incident
cannot inspire belief. Why, for instance, would his brother-in-law, the victim,
pounce on him with hard blows simply because he refused to join an invitation
for a few glasses of alcoholic drinks? And why would any brother of the victim
want to seriously harm accused when he had done nothing wrong to anyone;
in fact, it was him, the accused, who had been pummeled by the victim
without any valid reason? The questions beg a creditable answer. [15]

Nevertheless, the appellant is liable only for homicide and not murder. The
qualifying circumstance of treachery cannot be appreciated against appellant
because Alfredo was forewarned of the impending attack and he could have
in fact escaped had he not stumbled. The testimony of Ricky Aldion on this
point was revealing:
Q: When Bienvenido came back, what happened next?
A: He was already carrying a bolo.
Q: What did he do next?
A: When he was already near I said, Fred, you watched (sic) out because Ben is
coming.
Q: How far was Bienvenido to (sic) you and Alfredo when you told Fred, watched (sic)
out Ben is coming?
A: About ten meters, more or less.
Q: And when you told Alfredo Timgas by saying Fred, watch out Ben is coming. What
did Alfredo do next if any?
A: When Bienvenido was already near Alfredo ran.[16]
Likewise, the prosecution failed to prove the existence of evident
premeditation. For this aggravating circumstance to be appreciated, the
following must be shown: a) the time when the appellant decided to commit
the crime; b) an overt act showing that the appellant clung to his determination
to commit the crime and c) a sufficient lapse of time that would allow the
appellant to reflect upon the consequences of his act. In this case, the crime
[17]

was committed soon after the fisticuff between appellant and Alfredo. In fact,
the two appeared to be in good terms prior to the double-cross by the
appellant. Hence, it was evident that no appreciable time elapsed which
afforded the appellant full opportunity to reflect and allow his conscience to
overcome his deadly resolution.
On the other hand, the mitigating circumstance of voluntary surrender
requires that: (a) the offender has not been actually arrested; (b) the offender
surrenders himself to a person in authority or the latters agent and (c) the
surrender is voluntary. The essence of voluntary surrender is spontaneity,
[18]

the intent of the accused being to give himself up and submit unconditionally
to the authorities, either because he acknowledges his guilt or he wants to
save the state the trouble of having to effect his arrest. In the case at bar, the
[19]

appellants alleged surrender to the barangay chairman was not voluntary. On

the contrary, it was solely motivated by self-preservation from what he feared
was an imminent retaliation from the immediate relatives of
Alfredo. Consequently, the same cannot be appreciated in his favor.
The mother of the victim, Caridad Timgas, testified that actual damages
incurred amounted to P18,000, consisting of their expenses for the wake and
funeral. The trial court, however, correctly disregarded the same in the
absence of competent evidence such as receipts to justify the
award. However, the award of P50,000 as civil indemnity must be sustained
[20]

since the same can be awarded without need of evidence other than
appellants responsibility for the death of the victim. Moral damages in the
[21]

amount of P50,000 should also be awarded on account of the grief and

suffering of the victims heirs.
WHEREFORE, the appealed decision of the trial court is MODIFIED. The
appellant is hereby convicted of the crime of homicide only and sentenced to
suffer the indeterminate penalty of 10 years and 1 day of prision mayor, as
minimum, to 17 years and 4 months of reclusion temporal, as maximum. He is
likewise ordered to pay the heirs of the victim P50,000 as civil indemnity
and P50,000 as moral damages. Costs against appellant.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SAMUEL
BORCE, accused-appellant.

DECISION
VITUG, J.:

Samuel Borce was convicted by the Regional Trial Court of Bangued,

Abra, in a decision, promulgated on 23 October 1995, in the jointly-tried
Criminal Case No. 1481 and Criminal Case No. 1482. The trial court there
adjudged:

"WHEREFORE:

"In Criminal Case No. 1481 for Rape, the Court finds the accused guilty beyond
reasonable doubt of two (2) counts of the crime of rape committed with the use of a
deadly weapon aggravated by mutilation defined and penalized under Article 335 of
the Revised Penal Code in relation to Section 11 of Republic Act No. 7659, and
sentences him to suffer two death penalties.

"In Criminal Case No. 1482 for frustrated murder, the Court finds the accused guilty
beyond reasonable doubt of the crime of frustrated murder defined and penalized
under the provision of Article 248 in relation to Article 50 of the Revised Penal Code
and hereby sentences him to suffer an indeterminate penalty of EIGHT (8) YEARS
AND TWENTY (20) DAYS of prision mayor as minimum, to FOURTEEN (14)
YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of reclusion temporal as
maximum.

"The accused is hereby ordered to indemnify the victim in the amount of P250,000.00
as actual, moral and exemplary damages, and to pay the costs of the proceedings." [1]

The penalty of death having been imposed on the accused by the court a
quo, the records were elevated to this Court, in accordance with Article 47 of
the Revised Penal Code, as amended by Section 22 of Republic Act No.
7659, for automatic review.
Samuel Borce, the accused-appellant, had been charged in two separate
informations, to wit:

In Criminal Case No. 1481 for Rape:

"That on or about April 29, 1994, at around 8:30 o'clock in the morning, at the hill of
the western part of Bariquir, Barangay San Antonio, Municipality of Bangued,
Province of Abra, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design and with the use of deadly weapon, did then
and there, wilfully, unlawfully and feloniously lie upon one REGINA BAGA and
succeed in having carnal knowledge against her will and consent and this was
repeated for the second time around, to the great damage and prejudice of the said
offended party."[2]

In Criminal Case No. 1482 for Frustrated Murder:

"That on or about April 29, 1994, at around 8:30 o'clock in the morning, at the hill of
the western part of Barangay San Antonio, Municipality of Bangued, Province of
Abra, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, with intent to kill, with treachery, use of superior strength and evident
premeditation, did then and there, wilfully, unlawfully and feloniously hack the face
of one REGINA BAGA, inflicting multiple hack wounds on her face, thus the accused
having performed all the acts of execution which would have produced the crime of
Murder as a consequence but nevertheless did not produce it by reason of the timely
medical attendance rendered to said victim which prevented her death." [3]

The accused, assisted by counsel, entered a plea of "not guilty" to the two
charges.
The Solicitor General, closely paraphrasing the trial court in its decision,
summed up the evidence for the prosecution; thus:

"Complainant Regina Baga is 45 years old, married, and whose husband works abroad
as an overseas contract worker. She is thin and weighs not more than 100 pounds. She
and appellant, Samuel Borce, are neighbors in Barangay San Antonio, Bangued, Abra
(TSN., August 22, 1994, p. 3).

"On April 29, 1994, at about 8:30 o'clock in the morning, Regina took her bolo and
ventured alone to gather firewood at Barikir, a forested area situated about one
kilometer away from her house. (TSN, August 22, 1994, p. 4) While ascending a hilly
portion of the forest, she noticed appellant behind her (p. 3). Without saying a word,
appellant approached Regina, took hold of her right arm, twisted it and wrested away
her bolo (p. 3). Appellant poked the tip of the bolo on Regina's neck and threatened to
kill her (p. 10). At this point, appellant's bestial desires were aroused. Giving vent to
it, he pinned complainant on the ground and forcibly removed her 'Cullots' and
underpants. Regina unceasingly fought to resist his advances. Nonetheless, being
stronger and heavier, appellant placed himself on top of Regina and after a protracted
struggle succeeded in raping her. Thereafter, appellant dragged Regina away from the
pathwalk and into the woods (p. 7). His lust not yet satiated, appellant raped Regina
for the second time. When he was through, appellant dragged Regina farther into the
forest. There, he executed his plan to kill and abandon Regina. However, Regina did
not die. When she regained consciousness after being strangled by appellant, she
noticed that her face was hacked (Ibid. p. 9). Terrified, she screamed for help but [no
one] came.

"Meanwhile, Regina's son, Raymund, was worried that at a late hour his mother had
not yet returned home (TSN, Sept. 26, 1994, p. 10). Fearing that something bad may
have happened, he, together with his brother and sister, went to search for her in the
woods. There, they found their mother lying on the ground and bleeding profusely on
the face. Her brain tissues were exposed. When asked what had transpired, Regina
told her son that she was raped and hacked by appellant. (ibid., p. 11). Immediately
Raymund brought her mother to their house." [4]

Regina was brought to the Abra Provincial Hospital where she was
promptly attended to. Her treatment in the hospital lasted for 16 days. The
medical certificate, dated 11 May 1994, disclosing the findings of attending
[5]

physician Dr. Cynthia Cacho Viado on the injuries suffered by the victim,
pertinently read:

"IE - Multiple old hymenal lacerations

Vagina admits two fingers with ease.
Cervix open 1-2 cm.
Uterus enlarged to three months size.
Adnexae ( - )
Bleeding moderate.

"SPERM ID ( - )
PT ( - )

"x x x x x x

"NOI - Hacking
POI - San Antonio, Bangued, Abra
TOI - 8:30 A.M.
DOI - 4-29-94

"Multiple hacking wound - face (Mid) portion."[6]

Samuel Borce denied the accusation. Presented at the witness stand by

the defense were the accused himself, his mother Lydia Borce and one Dr.
Herminio Venus. Highlighting the testimony of the defense witnesses, the
Public Attorneys Office, acting as counsel for the accused, narrated its version
of the case; thus:

Accused Samuel Borce testified that on April 29, 1994, he went to get the firewood
that he gathered and when he arrived in the place he saw Regina Baga gathering the
firewood which he already gathered; then he prevented the victim from gathering the
firewood. She tried to hack him with her bolo so that they grappled for possession of
the bolo and while grappling, the bolo hit the head of Regina Baga afterwhich the
accused left her. He denied having raped Regina Baga. After grappling with the bolo,
the accused went home and thereafter he went to see Regina Baga when he was
informed that she was already dead and this was the time he was arrested and detained
up to the present. When he was arrested by the police officers he was not informed of
his human and constitutional rights.

LYDIA BORCE testified that she is the mother of the accused. That on April 29,
1994, she said that she and her son went to gather firewoods and after gathering
firewoods they went home and that he never raped the complainant. She admitted that
she did not see Regina Baga stabbed the accused because she went home already. She
only learned Regina Baga was hurt from the people who told her. She tried to go and
help her but she was already brought to the hospital. She testified that when her son
was brought to the police station he narrated that he accidentally hacked her (Regina
Baga) when the latter attempted to steal his firewood. She also asked the accused if he
raped Regina Baga and told her that he did not rape Regina Baga. Her son was
detained up to the present. She stated that she was not able to do anything for her son
because they are poor and have nothing to offer. She tried to asked the help of the
Brgy. Captain but they did not pay attention to her. When asked by the Court Regina
Baga alleged that when victim prevented her son to get the firewood gathered by her
son she personally witnessed the incident in fact she tried to prevent her and not to
steal the firewood, but Regina Baga did not heed her.

DR. VENUS when asked by the court if there was rape committed against victim
stated, thus: `As to my findings there is no physical injuries. He stated that the
lacerations were old ones and when rape committed within three hours, the lacerations
would have been fresh and not old. The victim was allegedly raped on April 29, 1994
so that on the same day she was examined. The doctor also admitted if there are no
lacerations there is consent to the sexual intercourse. The doctor also admitted that
moderate bleeding was due to menstrual period. When asked if there is spermatozoa,
he answered in the negative. He stated that a spermatozoa has a lifetime of within 24
hours or for 2 days and if the spermatozoa were inside already in the vagina it will
live for 17 days.
[7]
 The trial court, Hon. Benjamin A. Bogolan presiding, was not persuaded
by the theory put up by the defense in the face of the strong evidence
submitted by the prosecution. The accused was convicted, as aforesaid, of
the crimes charged.
In this appeal from the judgment finding him guilty, appellant Samuel
Borce assigned two related errors allegedly committed by the court below; to
wit:

1. The trial court gravely erred in giving full weight and credence to the testimonies of
the witnesses of the prosecution and in disregarding the theory of the defense.

2. The trial court gravely erred in convicting accused-appellant Samuel Borce of

double rape despite the fact that the results of the medical findings contradicted to the
testimony of Regina Baga thereby showing that no rape was committed. [8]

At the cost of being overly repetitious, the court, once again, must here
echo the familiar doctrine that in the assessment and evaluation of
contradictory asseverations of witnesses, it is with the trial court where the
main responsibility, as well as its concomittant authoritativeness, really
lies. The appellate court, absent cogent justifications that can warrant
otherwise, would almost certainly defer to the findings and conclusions made
thereon by the trial court. Several reasons have been advanced, nurtured by a
host of jurisprudential holdings, that are all too compelling to be ignored. The
trial judge is he who gets the opportunity to directly and intimately observe the
witnesses and to determine, by their demeanor at the witness stand, the
probative strength or weakness of that which they declare. The witnesses can
reveal much more than what can ordinarily be reflected in and perceived from
the transcripts that merely would contain the matter which is stated but not
how it is said. Tell-tale marks of either honesty or fabrication, truth or
concoction, reality or imagination, may eventuate from a meaningful pause or
spontaneous ready reply, the angry or subdued denial, the forthright stare or
the elusive eyes, the sudden pallor or the flush of face, and all that
characterizes the deportment and peculiar outward behavior of witnesses
when their response to both direct examination and cross examination is
elicited. These signs, although available to the trial judge, are, however,
[9]

easily lost on the appellate court.

In rape cases particularly, the judge is often asked to arbitrate between the
discordant and irreconcilable declaration of the victim and the denial of the
accused. In the estimation of such conflicting versions, hardly can the
appellate court assert a preponderant competence over that of the trial
judge. It is true, of course, that an accusation for rape can be managed with
facility, while the defense, upon the other hand, is invariably hard put to
dispute the claim of rape. It is precisely for these reasons that a court does not
merely take in stride the charge but gives a full and concentrated attention on,
as well as great caution in, the assessment and evaluation of the victims
testimony.
With all the above considerations in mind, the Court itself has gone over
the testimony of Regina. Here is how she has testified:
FISCAL FLORES:
Q Will you please state your name, age and other personal circumstances?
A Regina Baga, 45 years old, married, a housekeeper and a resident of San Antonio,
Bangued, Abra.
Q Madam Witness, do you know a person by the name of Samuel Borce?
A Yes, Sir.
Q And will you tell the Court why you know Samuel Borce?
A I know him because he is my neighbor in San Antonio, Sir.
Q Where are you neighbors in one another?
A In San Antonio, Bangued, Abra, Sir.
Q If this neighbor of yours Samuel Borce is in court this morning, will you kindly point to
him?
INTERPRETER:
Witness pointed to accused Samuel Borce.
FISCAL FLORES:
Q Alright, on April 29, 1994 at around 8:30 oclock in the morning, do you know where
were you?
A Yes, Sir.
Q Where were you at that time?
A I was in the forest, Sir.
Q Where is that forest you are referring to located?
A In Barikir, San Antonio, Sir?
Q Will you tell the Court why you were on the forest on that particular morning of April
29, 1994?
A I went to gather firewood, Sir.
Q Do you have any companion when you went to the forest to gather firewood at that
time?
A None, Sir.
Q Madam Witness, will you tell the Court the distance where you gathered firewood
from your house?
A It is less than 1 kilometer, Sir.
Q While you were at the forest or hill to gather firewood on that particular hour at 8:30
oclock in the morning, April 29, 1994, do you know if there was anything unusual
happened to you?
A Yes, Sir.
Q Will you tell the Honorable Court what was that unusual incident happened to you?
A On that particular morning when I went to gather firewood when I was ascending to
the mountain I saw Samuel Borce behind me, Sir.
Q And what happened next when you saw Samuel Borce behind your back?
A He got holding of my hand holding a bolo and twisted it, Sir.
Q And what happened when he twisted your arm and got the bolo?
A After twisting my right arm and wrested the bolo from me afterwhich he let me down
and removed my clothes and my panty and skirt, Sir.
Q After removing your skirt and panty, what did he do next?
A He raped me, Sir. He went on top of me and inserted his penis into my vagina.
Q You said that he took the bolo from you, what did he do with the bolo after taking
from you . . . . I withdraw the question, your Honor.
A You said he placed his private part into yours, what did you feel when he inserted his
penis into your vagina?
Q I felt something hot inside me, Sir.
COURT:
Q What was that hot if you know?
A Maybe his semen coming from him, Sir.
FISCAL FLORES:
Q More or less how long did he stay on top of you?
A About 3 minutes, Sir.
Q How many times did he insert his penis into yours?
A (No answer)
COURT:
Q Did he rape you?
A He raped me twice, Sir.
Q What do you mean by that?
A After raping me for once he transferred me to another place then he again raped me,
Sir.
Q Where did he transfer you?
A He transferred me to a place near the place where he first raped me, but that place is
farther than the path, Sir.
Q What is this path?
A The path going to the mountain, Sir.
Q And this is the path which you took in going to the mountain?
A Yes, Sir.
FISCAL FLORES:
Q Now, you said that he also took the bolo that you were holding?
COURT:
Q What happened after raping you for the second time?
A I struggled and I lost consciousness, Sir.
FISCAL FLORES:
Q After regaining your consciousness, what happened next?
A Samuel Borce was not there anymore by my face is already wounded, Sir.
Q Do you know what have caused the wound in your face?
ATTY. BARBERO:
Objection, your Honor, she said she was unconscious.
COURT:
May answer.
A Yes, Sir.
COURT:
Q What was he used in wounding your face if you know?
A He used my bolo, Sir.
FISCAL FLORES:
Q You said that the wound inflicted in your face was caused by the bolo he got from
you, in what stage did he cause the wound in your face, before the first rape or
after the first rape?
A After the second rape, Sir.
Q Actually, how did he wound you on that bolo he got from you?
A He hacked me, Sir.
Q Where?
 A He hacked me on my face, Sir. (Witness pointing to the scars on her face.)
Q How many times did he hack you in your face?
A He hacked me 3 times, Sir.[10]
On cross-examination, the complainant repeated, in the same
straightforward fashion, her direct testimony. Continuing, she went on to
respond to further searching questions of counsel; thus:
ON CROSS-EXAMINATION:
ATTY. BARBERO:
Q You said that the accused told you that he was going to kill you, in fact, he did not do
that instead according to you he laid you down and raped you?
COURT:
It is different.
ATTY. BARBERO:
Q When did he say that he will kill you?
A When he already laid me down, Sir.
Q By the way, Madam Witness, what is your educational attainment?
A First Year high school, Sir.
Q He did not kill you when he said that instead according to you he had a sexual
intercourse with you, is it not?
A Yes, Sir.
Q And according to you before he had sexual intercourse with you, he took off your
panty and palda?
COURT:
You need not to repeat.
ATTY. BARBERO:
That is what she said, your Honor.
A Yes, Sir.
ATTY. BARBERO:
Q What first did he take off?
A He removed first my skirt, Sir.
Q What is the kind of your skirt that you were wearing at that time?
A Cullotes, Sir.
COURT:
What is this cullotes?
ATTY. BARBERO:
It is a skirt but a pants and loose in the thighs, your Honor.
Q How did he take that off, your pants when you were lying down and you said that he
is already on top of you at that time?
A He pulled it down, Sir.
COURT:
Q What was your position?
A I was already lying down, Sir.
ATTY. BARBERO:
Q Isnt a fact, Madam Witness, that you testified before this Court when you said that
when he laid you down, he went on top of you?
A Yes, Sir, after removing my cullottes and my panty.
Q After he removed your cullottes, he then again removed your panty when you were
lying down?
A Yes, Sir.
Q Naturally, in taking off your cullottes and your panty, he used his two hands, is it not?
A He used both hands, Sir.
Q And at that time that he was taking off your cullottes and panty both of his hands,
you did not bother to kick him and then run away?
A I tried to defend myself but he is stronger than me, Sir.
Q However you have all the chances to defend yourself when he was removing your
cullottes and panty, why did you not try to kick him and fight him to defend
yourself?
A I tried to fight back but he is stronger than me, Sir.
Q You did not even try to bite his hands or scratch his face or his breast or whatever
part of his body?
A I cannot bite him because he pushed me down, Sir. (The witness making a gesture
of both hands.)
Q At the time he was pushing you down of both of his hands, he then make sexual
intercourse with you, is it not?
A Yes, Sir.
Q So since you said both of his hand were being used in pushing you down, how did
he able to insert his penis into your private part? Or how was he able to insert his
penis into your vagina when both of his hands were pushing you down?
A He went on top of me and insert his penis into my vagina, Sir.
Q At the time that he went on top of you, you did not try to close your thighs but you
spread it out?
A Even if I tried to close my thighs, he was so much stronger than I, Sir.
Q So that at the time that he was pushing you down according to you, both of his
hands, you did not have any other recourse than to let him go so that you have no
strength?
A Yes, Sir, because he is stronger than I and I could not do anything.
Q But during the time he was pushing you down with his two hands and then he did the
act of sexual intercourse according to you?
A Yes, Sir.
Q And according to you he again transferred you to another place, is it not?
A Yes, Sir.
Q How far from the original place?
A From here up to across the street, Sir.
COURT:
Which the parties agreed to be simply 25 to 30 meters.
ATTY. BARBERO:
30 meters, your Honor.
Q When he transferred you, you followed him?
A I followed him because he was dragging me, Sir.
COURT:
Q What was he pulling?
A My hand, Sir.
Q How about your panty and skirt?
A He was holding them, Sir.
ATTY. BARBERO:
Q He was pulling only with one hand?
A Yes, Sir.
Q What hand, the right or left hand?
A My right hand, Sir.
Q And his left hand was holding your cullottes and your panty?
A Yes, Sir.
Q So that you did not try to pull away although it is only his one hand was holding you?
A I was already weak, Sir.
Q You are already weak with one sexual intercourse?
A I was already weak because I was weakened with the experience and you can see
my physical built, Sir.
Q While he was pulling you to transfer to another place you did not even try to bite him
or fight back while the other hand was holding your panty and cullottes?
A Even if I am going to fight him back I am already weak and he is even stronger and
bigger than me in built, Sir.
Q Isnt a fact that San Antonio is a stony land?
A Even if San Antonio is stony, at that time I was not able to pick up stone and at that
time he was dragging me, Sir.
Q And you have your left hand to pick up a stone or pick up sand in order to grapple
with him?
A I was already overcome by fear, Sir.
ATTY. BARBERO:
I think the correct translation for that, your Honor, is; `I dont able to think that
anymore.
COURT:
Put it on record.
ATTY. BARBERO:
Q And even you did not think for shouting even that you said that the place is near the
road?
A I screamed for help but nobody was there to help me, Sir.
Q How about your husband, why did you not bring him to gather firewood?
A He was not around, Sir.
Q Where is your husband?
A He is working abroad, Sir.
Q How many years did he work there abroad?
A He went abroad in October, Sir.
Q October, what year?
A October, 1993, Sir.
COURT:
Q Is he still abroad?
A Yes, Sir.
ATTY. BARBERO:
Q So that at the time of the incident, your husband is not living with you for more than
6-months?
A Yes, Sir.
Q So at that time, it was you who was holding a bolo, is it not?
FISCAL FLORES:
I think that is a vague question, your Honor.
COURT:
Witness may answer.
A Yes, Sir, because I was on my way to gather fireword.
ATTY. BARBERO:
Q In fact, it was even you who tried to hack the accused but he got hold on you, is it
not?
A No, Sir, he got hold of my hand right away.
Q And that the time he got hold your hand and the bolo and it was wounded your face?
A No, Sir, he pointed the bolo first on my neck.
Q But your neck was not wounded?
A Yes, Sir, he just rested the point of the bolo on my neck.
COURT:
Q So that the wound at the base of your neck it is not caused by the accused as you
said later as the wound opened by the surgeon during your operation in order for
breathing?
A Yes, Sir.
ATTY. BARBERO:
Q You said that you were operated for a hack in your face, there was no showing,
there is no stitches?
A You can see three long scars on my forehead, Sir.
Q That was the time when he moved the bolo on your face?
COURT:
She said she was unconscious at that time.
ATTY. BARBERO:
Q You said that you are unconscious, however the accused did not do anything to you,
he did not kill you and did not stab you until you die?
FISCAL FLORES:
If she was unconscious at that time, how was she able to know, your Honor?
COURT:
Reform.
ATTY. BARBERO:
Q However, you did not sustain anymore wounds when you were unconscious the
accused did not take the opportunity to kill you?
FISCAL FLORES:
She was already unconscious, your Honor.
COURT:
Sustained.
ATTY. BARBERO:
Q So that according to you the accused left you when you were unconscious?
FISCAL FLORES:
Objection, your Honor, she was already unconscious.
COURT:
What is the question?
ATTY. BARBERO:
Q So that according to you the accused left you when you were unconscious, that
when she regained her consciousness, she found her face bleeding, your Honor?
COURT:
May answer.
A Yes, Sir.
ATTY. BARBERO:
Q And that was all that the accused did to you, he just left you?
FISCAL FLORES:
The question is misleading, your Honor.
COURT:
Reform.
ATTY. BARBERO:
Q In your statement found on page 6 of the record, question No. 4 and answer No. 4,
you did not state that you were transferred by the accused and he again raped
you, which may I request that it be marked as Exhibit l, your Honor?
COURT:
Mark it Exhibit l, question and answer No. 4, mark the original copy.
ATTY. BARBERO:
It is found on page 5 of the record of the rape case so with the frustrated murder case,
your Honor.
COURT:
Anyway it is jointly tried.
ATTY. BARBERO:
Q You said that when he transferred you to another place, you have all the chances to
pick up your cullotes and your panty, however you have never have the chance to
pick up a stone and throw his hand?
A There was no stone beside me, Sir.
COURT:
Q Is this place a thickly forested or sparsely?
A That is a thickly forested place, Sir.
ATTY. BARBERO:
Q Isnt a fact, Madam Witness, that San Antonio there are no more forest and then that
is being flooded everytime when there was a typhoon?
A Some parts only, Sir.
Q Did you not say a while ago that the first he first raped you was along the path and
then he brought you farther along the road?
COURT:
She did not say that. She was not raped beside the road.
ATTY. BARBERO:
She said, your Honor, transferred me farther the road nearer the path.
COURT:
Yes, nearer the path. May answer.
A Yes, Sir.
COURT:
Q How far was it from the path?
A It is about from here up to there, Sir, about half a meter.
ATTY. BARBERO:
Q And along that path there are stones and sands because the path is not aspalted, is
it not?
A There are no stones because the soil there was hard, Sir.
Q You never have any conversation with him at the time, only the fact that he told you
he is going to kill you, however he did not kill you but he raped you?
A Yes, Sir.
ATTY. BARBERO:
Thats all for the witness, your Honor.[11]
 The testimony of Regina Baga is plain and unswerving. The Court is
amply convinced that the trial court could not have erred in giving credence to
her testimony. Even an uncorroborated testimony of a single witness, if
credible, is enough to warrant conviction. If the rule were otherwise, there
rarely would be convictions in rape cases which almost invariably are
committed with no eye-witnesses around to attest to their commission. Neither
can alibi, verily a mere denial and basically self serving in nature, be held to
prevail over positive and affirmative testimony. The rule is even strengthened
where the complainant appears to have no nefarious motive to charge the
accused wrongly. It would be unthinkable that Regina Baga, a frail woman,
weighing barely 100 pounds, married, and 45 years of age at the time of the
attack on her honor, would open herself and her family to public scrutiny and
embarassment, let alone send an innocent man possibly to the gallows, for no
strong reason at all.
Already in the past, the Court has rejected the argument that the absence
of sperm in the vaginal area is a good defense in a rape case. It may not be
amiss to add that the medical certificate was issued by Dr. Viado only on 11
May 1994 or several days after the commission of the offense on 29 April
1994. Medical findings indicative of pressure on the genitalia, coupled with the
testimony of the victim, have repeatedly been held to suffice. [12]

Article 335 of the Revised Penal Code, as amended by Section 11 of

Republic Act No. 7659 reads:

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.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by
two or more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by reason or on
the occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death.

The death penalty shall also be imposed if the crime of rape is committed with
any of the following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim.

2. When the victim is under the custody of the police or military authorities.

3. When the rape is committed in full view of the husband, parent, any of the children
or other relatives within the third degree of consanguinity.

4. When the victim is a religious or a child below seven (7) years old.

5. When the offender knows that he is afflicted with Acquired Immune Deficiency
Syndrome (AIDS) disease.

6. When committed by any member of the Armed Forces of the Philippines or the
Philippine National Police or any law enforcement agency.

7. When by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation."

In fine, relevant to the case at bar, when the crime of rape is committed
with the use of a deadly weapon," the penalty prescribed is reclusion
perpetua to death. The death penalty is imposed when by reason or on the
occasion of rape, the victim has suffered permanent physical mutilation. In this
regard, the Court a quo stated:

It is therefore crystal clear to the mind of this Court that the two counts of rape were
committed with the use of a deadly weapon, i.e., the bolo used by the accused in
hacking, with the bestiality of an enraged beast, the victim with three strokes on her
face all of which were fatal and nearly cost her life. This dastardly and heinous act
was accompanied by unusual cruelty and savagery. The victim was left for dead; that
she survived is, to the Court, the will of providence so she can identify to the strong
arm of the law and to the unerring sword of justice, her attacker.
In the advent of the reimposition of the death penalty under R.A. No. 7659, Sec. 11,
this Court is mandated to impose the death penalty, considering that the victim
sustained fatal wounds which left her permanently deformed with the three ugly scars
across her face. Furthermore, the wounds were inflicted after she was ravished so that
these were therefore unnecessary for the commission of rape, thus displaying the
cruelty of the offender. [13]

The imposition of the death penalty on accused-appellant by the trial court

on each count of rape has been premised on the infliction of three scars on
the victims face. The phrase permanent physical mutilation has not been
defined in the law. Neither Article 335 of the Revised Penal Code, as so
amended by Republic Act No. 7659, nor any of the chapters in Title Eleven,
entitled Crimes against Chastity, provides any further clue on the meaning
that should be given to the term. In Title Eight on Crimes against
Persons, the Code simply states in Article 262 thereof that -
[14]

Art. 262. Mutilation. - The penalty of from 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.

No specific ascription having been given by the law to the word, mutilation
must perforce be understood in its generic sense and ordinary
usage. Webster defines mutilation as cutting off or permanently destroying a
[15]

limb or an essential part thereof. Black defines the term, in its criminal law
[16]

concept, as one that would deprive a person of the use of any of those limbs
which may be useful to him in fight, the loss of which amounts to mayhem.
A thorough reading of the records of the case would fail to disclose that
accused-appellant inflicted the wounds on the victim deliberately to maim
her. It would, in fact, appear that the victim sustained the wounds only as a
result of a clear attempt by appellant to kill her and cover-up his
misdeeds. The injury thus borne by private complainant should not be taken
as a circumstance which would raise the penalty to death for the crime of rape
but should instead rightly be taken up and absorbed in the crime of frustrated
murder.
Accordingly, for each count of rape, there being neither mitigating nor
aggravating circumstance alleged and proved in the commission thereof, the
penalty, conformably with Article 63 of the Revised Penal Code, that should
properly be imposed on accused-appellant in Criminal Case No. 1481
is reclusion perpetua.
Relative to Criminal Case No. 1482, Article 248 of the Revised Penal
Code provides:

ART. 248. Murder. - Any person who, not falling within the provisions of Article 246
shall kill another, shall be guilty of murder and shall be punished by reclusion
perpetua to death if committed with any of the following attendant circumstances:

1. With treachery, taking advantage or superior strength, with the aid of armed men,
or employing means to weaken the defense or of means or persons to insure or afford
impunity.

2. In consideration of a price, reward or promise.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a vessel,

derailment or assault upon a railroad, fall of an airship, or by means of motor vehicles,
or with the use of any other means involving great waste and ruin.

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of

an earthquake, eruption of a volcano, destructive cyclone, epidemic or other public
calamity.

5. With evident premeditation.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim,
or outraging or scoffing at his person or corpse.

When the crime is frustrated the penalty next lower in degree shall be
imposed; hence, Article 50 of the same Code states:

ART. 50. Penalty to be imposed upon principals of a frustrated crime. - The penalty
next lower in degree than that prescribed by law for the consummated felony shall be
imposed upon the principal in a frustrated felony.

The prosecution has satisfactorily shown that accused-appellant did

likewise commit the crime of frustrated murder. The wounds inflicted on the
hapless victim could have resulted in her death had it not been for the timely
medical treatment administered to her. On accused-appellant's contention that
he has had no intention to kill the victim, the Court agrees with the Solicitor
General in his observations that -
(the) claim is completely belied by the nature and number of the wounds he inflicted
on his victim. The medical examination of the victim reveals that the victims hack
wounds were indeed fatal. Observedly, the hack wounds extended to the brain matter
of Regina. The court a quo dismissed appellants defense as a `naive story. According
to him, complainant tried to steal the firewood which appellant had gathered; that
when appellant caught complainant in the act, she tried to hack him with her bolo; that
in the struggle for possession of the bolo, complainant was accidentally wounded on
the face. As correctly concluded by the court a quo, it befuddles the mind how
complainant could have accidentally suffered three (3) deep hack wounds on her
forehead and face when allegedly, in the course of the struggle, the sharp edge of the
bolo faced the accused while its blunt edge faced the complainant. That the wounds
inflicted were deep and fatal belies appellants claim that the blows were purely
accidental.
[17]

On the award in lump sum of "P250,000.00 as actual, moral and

exemplary damages" to the victim, the court a quo has acted inaptly. In order
to sustain any award for such damages, each must be independently justified
and substantiated which is here unfortunately wanting. For one, exemplary
damages are awarded in a criminal offense only when its commission is
attended by an aggravating circumstance, a matter which has not been
established. Consistent with prevailing jurisprudence, however, the victim is
[18]

entitled to an indemnity of P50,000.00 for each count of rape.

WHEREFORE, the decision of the Regional Trial Court of Bangued, Abra,
in Criminal Case No. 1482, finding appellant SAMUEL BORCE guilty beyond
reasonable doubt of the crime of frustrated murder and sentencing him
accordingly, is AFFIRMED. The decision in Criminal Case No. 1481, finding
the same appellant guilty beyond reasonable doubt of two counts of rape is
AFFIRMED with the MODIFICATIONS, however, that the penalty imposed on
accused-appellant for each count of rape is hereby reduced to reclusion
perpetua, and appellant is ordered to pay, instead of the P250,000.00
damages awarded by the court a quo, an indemnity of P50,000.00 for each
count of rape.
Costs against accused-appellant.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, G.R. No. 178546

Plaintiff-Appellee, Present:

YNARES-SANTIAGO, J.
Chairperson,
AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA and
- versus -
REYES, JJ.

Promulgated:

MUKIM ELING y
MAALAC, April 30, 2008
Accused-Appellant.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

Appellant Mukim Eling y Maalac assails the Decision[1] of the Court of Appeals
dated 13 July 2006 in CA-G.R. CR-HC No. 00191-MIN, affirming with modification
the Decision[2] dated 1 October 2001 of the Regional Trial Court (RTC) of the Ninth
Judicial Region, Branch 16, Zamboanga City, in Criminal Case No. 16315. The RTC
found appellant guilty beyond reasonable doubt of the crime of Murder.

On 7 September 1999, an Information[3] was filed before the RTC charging

appellant of Murder, the accusatory portion thereof, reads:
That on or about September 2, 1999, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a .45 Caliber pistol bearing Serial
No. 652479, by means of treachery and with intent to kill, did then and
there willfully, unlawfully and feloniously, suddenly and without any
warning, assault, attack and shoot with the use of said weapon that he
was then armed with, at the person of MOHAMMAD NUH TUTTOH y
HAMIDUL, thereby inflicting upon the latters person mortal gunshot
wound on the fatal part of his body which directly caused his death, to
the damage and prejudice of the heirs of said victim; furthermore, there
being present an aggravating circumstance in that the crime charged
herein was committed with the use of an unlicensed firearm.

On 22 October 1999, appellant was arraigned with the assistance of his

counsel de oficio. He pleaded Not Guilty. Thereafter, pre-trial was held, and trial
ensued accordingly.

Evidence for the prosecution showed that at about 5:45 in the afternoon of 2
September 1999, the brother of the appellant, Alangan Sakandal (Sakandal) and
the deceased Mohammad Nuh Tuttoh (Tuttoh) were seated beside each other on
a platform or bench at the side of a small nipa hut owned by Tuttoh. The hut was
located along the shoreline of Tictabon Island in Zamboanga City. It was situated
roughly 10 meters away from Tuttohs house. The hut has a wide door and walls
made of bamboo slats with gaps in between.The walls did not reach up to the
ceiling. The floor of the nipa hut was about one meter and 20 centimeters from
the ground, while the platform or bench on which Tuttoh and Sakandal were
seated was about one meter high from the ground. At that time, the appellant
was inside the nipa hut. Crispin Kaluh was standing about four meters away from
Tuttoh and Sakandal. While Tuttoh and Sakandal were conversing, Sakandal heard
a shot. He saw a pistol poised just above his shoulders. He grabbed the pistol, and
it fell. He saw that the man holding the pistol with both hands was his brother,
the appellant, who was inside the nipa hut. The appellant shot Tuttoh from
behind. Tuttoh was hit on the nape and the bullet exited on his right cheek. After
the pistol fell to the ground, the appellant ran away to the seashore. Sakandal
took the pistol while Crispin Kaluh chased the appellant, held him, and tied his
hands. Tuttoh was already dead when he was brought to the nipa hut, 10 meters
away from his house. The cause of his death was discovered to be hemorrhage
secondary to gunshot wound.

Sakandal testified that in the evening of 2 September 1999, he turned over the
gun to Birri Ahagin (Ahagin), the right hand man of Tuttoh. It was a colt .45 cal.
pistol with Serial No. 652479. Ahagin confirmed the testimony of
Sakandal. According to Ahagin, after receipt of the gun from Sakandal, he filed a
report with the Police Detachment and turned the gun over to SPO1 Amadol
Nasihul at seven oclock in the evening of the same day.

The prosecution also presented its eyewitness Crispin Kaluh (Kaluh) who testified
that he is a seaweed farmer working at the seaweed farm owned by Tuttoh
in Tictabon Island.[4] Kaluh further testified that at the time of the incident, he was
five (5) arms length away from Tuttoh.[5] He saw Tuttoh seated and conversing
with Sakandal on the bench near the nipa hut. He suddenly heard a gunshot and
saw Tuttoh fall down and die.[6] He testified that he saw the appellant shoot
Tuttoh from inside the nipa hut.[7] Kaluh added that he saw Sakandal grab the
pistol from the appellant which caused the latter to run away.[8] Kaluh chased the
appellant. When he caught up with the appellant, he tied his hands.[9]

Forensic Chemist P/Sr. Inspector Mercedes Delfin Diestro testified that both
hands of the appellant were found positive of gunpowder nitrates.[10]
Dr. Efren Apolinario, medico-legal doctor of the Zamboanga City Health Office,
was presented by the prosecution as an expert witness.[11] He testified on the
cause of death of Tuttoh, as well as on the postmortem examination he
conducted on the cadaver of Tuttoh on the morning of 3 September 1999. He
noted that Tuttohs body sustained a gunshot wound measuring .8 to 1.2 cm. at
the back occiput directed also on the right portion between the right upper and
the right lower mandibular bone measuring 1.5 inches everted.[12] From the size
of the wound, he approximated that the firearm used was a .45 caliber. [13] He
issued a death certificate reflecting therein hemorrhage secondary to gun shot
wound neck, back as the cause of death of the victim.[14]
SP02 Jesus Guray Ortega was presented by the prosecution to prove that the
appellant had not applied for a license to possess the firearm, nor did he have a
license to carry firearm or authorized to carry firearm outside his residence.[15]

Finally, the prosecution presented as witness, Tuttohs mother, Jaihan Abu. She
testified that Tuttoh was his only son. At the time of Tuttohs death, he and his
wife had five (5) children, and the wife was pregnant with child. The wife had
given birth after the demise of Tuttoh. Jaiham Abu further testified that she
incurred expenses in connection with the death of her son in the total amount
of P54,075.00. She said that in connection with Tuttohs funeral, they spent 10
sacks of rice in the total amount of P8,500.00. They also slaughtered a cow, and
bought cigarettes and fish.[16]

The appellant was presented as the sole witness for the defense. According to
him, at about 5:45 in the afternoon of 2 September 1999, he was sleeping inside
the nipa hut.[17]He woke up when he found himself being mauled by
Tuttoh. According to the appellant, he was mauled by Tuttoh for the purported
reason that he was having an affair with the latters relative.[18] Tuttoh hit him on
the nape.[19] They grappled for the pistol that was being held by Tuttoh.[20] While
they were in that position, the pistol accidentally fired and Tuttoh was
hit.[21] Afterwards, he surrendered to a person by the name of Bario.[22]
After trial, the RTC convicted the appellant of the crime of Murder. The RTC
reasoned that Murder was committed by means of treachery because the victim,
who was shot at the back with a .45 caliber pistol, was totally unaware.[23] The
RTC also ruled that the attack was sudden and unexpected and Tuttoh had no
chance whatsoever to defend himself or to escape.[24] It appreciated the presence
of the aggravating circumstance of use of unlicensed firearm which was not offset
by any mitigating circumstance.[25]

On 1 October 2001, the RTC decreed:

WHEREFORE, the Court finds accused MUKIM ELING y MAALAC GUILTY

BEYOND REASONABLE DOUBT of the crime of Murder, as principal, for
the unjustified killing of Mohammad Nuh Tuttoh with the qualifying
circumstance of treachery and aggravating circumstance of use of
unlicensed firearm and SENTENCES said accused to suffer the penalty of
DEATH and its accessory penalties; to pay the heirs of the
victim P50,000.00 as indemnity for his death; P54,075.00 as actual
damages; P50,000.00 as moral damages; P30,000.00 as exemplary
damages; and to pay the costs.

Pursuant to the provision of Section 22 of R.A. No. 7659, amending Art.

47 of the Revised Penal Code, let the complete records of this case be
forwarded to the Supreme Court for automatic review.[26]

With the imposition of the death penalty on appellant, the case was elevated to
the Supreme Court on automatic review. Pursuant to the Courts ruling in People
v. Mateo,[27] the case was transferred to the Court of Appeals.[28]
 On 13 July 2006, the Court of Appeals affirmed with modification the
appellants conviction by the RTC. The Court of Appeals ratiocinated in this wise:

Culled from the records of this case, the prosecution substantially

established that appellant was in fact the assailant and not the
assailed. Its eyewitnesses gave an interlocking account of the facts,
leading to no other conclusion than that appellant committed a
treacherous assault on the person of the victim. Their testimonies, with
intricate attention to details, were narrated in straightforward,
categorical and candid manner, thus, worthy of belief and credit.

Appellant was positively identified by no less than his older full-blood

brother, Alangan Sakandal, as the one who shot the victim to
death. The latter was seated beside the victim when appellant shot the
victim from behind hitting the victims nape. After the victim was shot,
he tried to grab the gun from appellant. In the course of their struggle
for its possession, the gun fell down. Appellant then fled towards the
seashore.[29]

The Court of Appeals similarly appreciated the finding of the RTC that the
killing was qualified by treachery. It ruled that the appellant positioned himself
without risk to himself from any defense which the victim might have
made. However, it disagreed with the penalty of death imposed by the RTC. It
argued that on 30 June 2006, Republic Act No. 9346, otherwise known as An Act
Prohibiting the Imposition of Death Penalty in the Philippines, took effect. Citing
Section 2[30] thereof, it downgraded the penalty from death to reclusion
perpetua and awarded temperate damages in lieu of actual damages. It deleted
the award of actual damages for the reason that no receipts were shown to
support the claim of expenses incurred for the wake and the burial of the victim.
The dispositive portion of the Decision reads:
 WHEREFORE, premises considered, the instant appeal is
DISMISSED for lack of merit and the Decision dated 1 October 2001 of
the Regional Trial Court is hereby AFFIRMED WITH MODIFICATION that
appellant Mukim Eling y Maalac is found guilty beyond reasonable
doubt of the crime of Murder and is hereby sentenced to suffer the
penalty of reclusion perpetua in lieu of the death penalty pursuant to
Section 2 (a) of R.A. No. 9346 and appellant is directed to pay the heirs
of the victim the amount of P50,000.00 as civil indemnity; P50,000.00
as moral damages; P30,000.00 as exemplary damages; and P25,000.00
as temperate damages in lieu of actual damages.[31]

In his brief, the appellant raises the following assignment of errors, to wit:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF THE CRIME CHARGED WHEN HIS GUILT WAS NOT
PROVEN BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-

APPELLANT OF THE CRIME OF MURDER WHEN TRECHERY WAS NOT
SUFFICIENTLY PROVEN BY THE PROSECUTION.

III
 THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME
PENALTY OF DEATH WHEN THE AGGRAVATING CIRCUMSTANCE OF
ILLEGAL POSSESSION OF FIREARMS WAS NOT DULY PROVEN.[32]

For our resolution are the following issues: (1) whether appellants guilt was
proven beyond reasonable doubt; (2) whether treachery was sufficiently proven;
and (3) whether the aggravating circumstance of illegal possession of firearms
was duly shown.

We are unable to depart from the factual findings of the Court of Appeals.

Appellant assails the full faith and credit given to the testimony of the witnesses
for the prosecution, especially on the testimony of Sakandal. Appellant avers that
Sakandals testimony is marred by inconsistencies considering that he initially
stated in categorical terms that he was sitting beside the victim when the latter
was shot from behind. Sakandal later testified that he was passing behind the
nipa hut where the appellant was sleeping when he saw the latter shoot the
victim. We have consistently ruled that on matters involving the credibility of
witnesses, the trial court is in the best position to assess the credibility of
witnesses since it has observed firsthand their demeanor, conduct and attitude
under grilling examination.[33] The trial court has the best opportunity to observe
the demeanor of witnesses while on the stand, it can discern whether or not they
are telling the truth.[34] The unbending jurisprudence is that its findings on the
matter of credibility of witnesses are entitled to the highest degree of respect and
will not be disturbed on appeal.[35] It is well to remind appellant that when the
trial courts findings have been affirmed by the Court of Appeals, as in the case at
bar, these are generally binding and conclusive upon this Court.[36] The
jurisprudential doctrine that great weight is accorded to the factual findings of the
trial court particularly on the ascertainment of the credibility of witnesses can
only be discarded or disturbed when it appears in the record that the trial court
overlooked, ignored or disregarded some fact or circumstance of weight or
significance which if considered would have altered the result.[37] There are no
cogent reasons to depart from the findings of the trial court and the Court of
Appeals. The alleged inconsistency in the testimony of Sakandal does not negate
his eyewitness account that he saw appellant shoot the victim. Even then,
witnesses cannot be expected to give a flawless testimony all the
time.[38] Although there may be inconsistencies in minor details, the same do not
impair the credibility of the witnesses, where, as in this case, there is no
inconsistency in relating the principal occurrence and the positive identification of
the assailant.[39] Moreover, minor inconsistencies serve to strengthen rather than
diminish the prosecutions case as they tend to erase suspicion that the
testimonies have been rehearsed, thereby negating any misgivings that the same
were perjured.[40] Similarly, we note that the eyewitness Sakandal, who is
appellants brother, was shown to have no ill motive to falsely testify against the
appellant. In fact, from the mouth of the appellant himself, it was confirmed that
prior to the incident, he was in good relationship with his brother,
Sakandal. Moreover, appellant also testified that they were very close to each
other, and that they did not have any misunderstanding.[41] The same was also
true with eyewitness Kaluh who testified against him. Kaluh was five arms length
away from the scene of the crime. Indeed, the testimonies of Sakandal and Kaluh
are a positive identification of appellant as the assailant. These constitute direct
evidence.[42] Sakandal and Kaluh are eyewitnesses to the very act of the
commission of the crime and positively identified the appellant as the offender.

On the question of treachery, the RTC supports its findings on the following
ratiocination:

It is difficult to imagine how the gun could have fired while [appellant]
and the victim were grappling for it and hit the victim at the back of the
neck and the bullet exited at the victims right cheek. Moreover, there
were no powder burn at the entry wound at the back of the victims
neck indicating that the victim was shot at a distance of more than
twenty four (24) inches or two (2) feet, such that the victim could not
have been shot while he was grappling for the gun with the accused.[43]
 The Court of Appeals affirmed such findings and found that treachery
attended the commission of the crime.

A qualifying circumstance like treachery changes the nature of the crime

and increases the imposable penalties for the offense.[44] Hence, like the delict
itself, it must be proven beyond reasonable doubt.[45] Treachery can be
appreciated when the following requisites are present: (1) the employment of
means, method or manner of execution which would ensure the safety of the
malefactor from defensive or retaliatory acts on the part of the victim, no
opportunity being given to the latter to defend himself or to retaliate; and (2) the
means, method, or manner of execution were deliberately or consciously adopted
by the offender.[46] Appellant was shown to have shot the deceased Tuttoh from
behind, hitting him in the nape, and with the bullet exiting the victims right
cheek. During the commission of the crime, the deceased Tuttoh was sitting on a
bench or a platform outside the nipa hut. He was conversing with Sakandal. He
was unaware of any attack that appellant had planned against him. What existed
here was such a sudden and unexpected attack by the appellant and without
warning on an unsuspecting victim, depriving Tuttoh of any real chance to defend
himself, and thereby ensuring, without risk, its commission.

Anent the issue of the aggravating circumstance of the use of unlicensed

firearm, appellant questions the same on the claim that no evidence was shown
that he had prior physical possession and/or ownership of the .45 caliber gun
before the same was used against the deceased. We are not impressed. When
Republic Act No. 8294 took effect on 6 July 1997, the use of an unlicensed firearm
was considered merely an aggravating circumstance, if murder or homicide or any
other crime was committed with it.[47] Tworequisites are necessary to establish
illegal possession of firearms: first, the existence of the subject firearm; and
second, the fact that the accused who owned or possessed the gun did not have
the corresponding license or permit to carry it outside his residence. In the case at
bar, the existence of the subject firearm was duly established. Secondly, it was
ascertained that the appellant who used the subject firearm to commit the crime
did not have the corresponding license or permit to carry the gun outside of his
residence. Even then, Section 5[48] of Republic Act No. 8294 enumerates,
unauthorized use of licensed firearm in the commission of the crime as covered
by the term unlicensed firearm. It was not shown that appellant had the authority
to use the firearm.

We are in accord with the grant by the Court of Appeals of civil indemnity;
however, in accordance with prevailing jurisprudence, we increase the same
to P75,000.00. The amount of P75,000.00 as civil indemnity is awarded only if the
crime is qualified by circumstances which warrant the imposition of the death
penalty.[49] Though the penalty imposed on appellant was reduced to reclusion
perpetua pursuant to Republic Act No. 9346, civil indemnity to be awarded
remains at P75,000.00. We also agree with the award of moral damages in the
amount of P50,000.00. We award the same as the circumstances surrounding the
untimely and violent death, in accordance with human nature and experience,
could have brought nothing but emotional pain and anguish to the victims
family.[50]

We retain the award of exemplary damages but reduced the amount

to P25,000.00 following current jurisprudence.[51] Exemplary damages in the
amount of P25,000.00 must be awarded, given the presence of treachery which
qualified the killing to murder. Article 2230 of the Civil Code allows the award of
exemplary damages as part of the civil liability when the crime was committed
with one or more aggravating circumstances. The term aggravating circumstance
as used therein should be construed in its generic sense since it did not specify
otherwise.

Notwithstanding the absence of receipts to prove actual damages, we affirm the

grant of the Court of Appeals of temperate damages in the amount of P25,000.00,
in lieu of actual damages. The award of P25,000.00 in temperate damages in
homicide or murder cases is proper when no evidence of burial and funeral
expenses is presented in the trial court.[52] Under Article 2224 of the Civil Code,
temperate damages may be recovered as it cannot be denied that the heirs of the
victim suffered pecuniary loss although the exact amount was not proved.[53]
WHEREFORE, the instant appeal is DENIED. The Decision of the Court of Appeals
dated 13 July 2006 in CA-G.R. CR-HC No. 00191-MIN
is AFFIRMED withMODIFICATION. Appellant Mukim Eling y Maalac is
found GUILTY of the crime of MURDER. The proper imposable penalty would
have been death. However, pursuant to Section 2(a) of Republic Act No. 9346,
appellant is sentenced to suffer the penalty of reclusion perpetua without
possibility of parole. Appellant is directed to pay the heirs of Mohammad Nuh
Tuttoh the amounts of P75,000.00 as civil indemnity; P50,000.00 as moral
damages; P25,000.00 as exemplary damages; and P25,000.00 as temperate
damages.No costs.

G.R. No. 168649 December 6, 2006

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOSE ALVIZO AUDINE, accused-appellant.

DECISION

CHICO-NAZARIO, J.:

Before Us for review is the Decision1 of the Court of Appeals in CA-G.R. CR-H.C. No. 00338 which affirmed
with modification the Decision2 of the Regional Trial Court (RTC) of Marikina City, Branch 272, finding accused-
appellant Jose Alvizo Audine guilty of two (2) counts of rape committed against his fourteen-year old daughter,
AAA3 and sentencing him to suffer the capital punishment for each count.

On the basis of the complaint filed by AAA, two informations for Rape4 against accused-appellant were filed
with the RTC of Marikina City. The accusatory portions thereof read:
 Criminal Case No. 2001-4093-MK

That on or about the 24th day of December 1999, in the City of Marikina, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, who is the father of the minor victim,
by means of force, coercion and intimidation, with the use of small knife which is a bladed weapon,
and with lewd design or intent to cause or gratify his sexual desire upon complainant AAA, a minor and
fifteen (15) years old, did then and there willfully, unlawfully and feloniously have sexual intercourse
with said complainant against her will and consent which debases, degrades or demeans the intrinsic
worth and dignity of said child as a human being.5

Criminal Case No. 2001-4094-MK

That on or about the 8th day of January 2000, in the City of Marikina, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, who is the father of the minor victim,
by means of force, coercion and intimidation, with the use of a small knife which is a bladed weapon,
and with lewd design or intent to cause or gratify his sexual desire upon complainant AAA, a minor and
fifteen (15) years old, did then and there willfully, unlawfully and feloniously have sexual intercourse
with said complainant against her will and consent which debases, degrades or demeans the intrinsic
worth and dignity of said child as a human being.6

The cases were raffled to Branch 272. Finding probable cause, a warrant of arrest was issued against
accused-appellant who was arrested and detained at the Marikina City Police Station.

When arraigned on 10 June 2002, accused-appellant, with the assistance of counsel de oficio, pleaded "not
guilty" to the two counts of rape.7 Thereafter, the cases were consolidated and jointly tried.

During the pre-trial, the following stipulation of facts8 was entered into by the prosecution and the defense:

1. The jurisdiction of this court to try these cases;

2. The identity of the accused as AAA;9

3. The existence and due execution of Medico Legal Report No. M-187-01 issued and prepared by Dr.
Ruby Grace D. Sabino dated January 17, 2001;

4. The existence of the medico legal examination issued and prepared by Dr. Ruby Grace D. Sabino
addressed to the PNP Crime Laboratory;

5. The existence and due execution of the initial of the Medico Legal Report No. M-187-01 dated
January 16, 2001; and

6. The existence of the manifestation of consent signed by the victim and the Department of Social
Welfare and Development who is the guardian of the victim.

The prosecution presented four witnesses, namely: private complainant AAA, Dr. Ruby Grace D. Sabino, SPO4
Nenita Sadullo Abanes and Lucila Sulte Arresu. For the defense, only accused-appellant took the stand.

The records bear the following:

It appears from the evidence adduced by the prosecution that AAA, the only daughter of the accused-
appellant, was born on August 4, 1985.
 On November 7, 1999, the accused-appellant was supposed to bring AAA to the house of his wifes
cousin in Bulacan. Instead, he brought her to the house of his own cousin, Arminda Arginosa, at XXX,
XXX City.

On December 24, 1999, AAA was alone reading magazines in the house of her aunt when the
accused-appellant arrived and ordered her to get his clothes from the masters bedroom. AAA did as
told. But the accused-appellant almost at once followed AAA inside the room and pushed her towards
the bed. She fought back but the accused-appellant boxed her in the abdomen. The accused-appellant
then forcibly took off AAAs dress and shorts. AAA continued resisting the accused-appellant and
pleaded with him to stop, but to no avail. The accused-appellant kissed AAAs body, laid on top of her,
and inserted his penis into her vagina, satiating his lust. After the violation, the accused-appellant
warned AAA not to tell anybody about the rape. AAA feared for her life because the accused-appellant
pointed a knife at her before and after the rape incident.

The second violation occurred on January 8, 2000. AAA was sleeping alone in her room when she felt
something pressing on her thigh. It was again the accused-appellant, a knife pointed at her abdomen,
who was undressing her. It was the same knife the accused-appellant used during the December 24,
1999 incident. AAA shouted and fought back, but as in the first incident, the accused-appellant again
boxed her in the stomach. The accused-appellant masturbated first before inserting his male member
into AAAs vagina. At the conclusion of the bestial assault, he threatened to kill AAA and her siblings if
she reported the rape to anybody. After the incident, the accused-appellant left for Quezon Province.

As a result of her successive violations, AAA got pregnant. On August 19, 2000, she gave birth to a
baby boy, who however died five (5) days later.

Since she was in virtual isolation, AAA went to see medical social worker Lucila Arresu and revealed to
the latter that the accused-appellant had raped her. Armed with that information, Lucila called up the
Marikina City Police. SPO4 Nenita Abanes interviewed AAA and took down her statement.

On January 16, 2001, Dr. Ruby Grace Sabino conducted a physical examination on AAA. She found
the condition of AAAs genitalia exhibiting signs of penetration. According to her, AAAs hymen has
"carunculae myrtiformis" or, in laymans term, there is already a rose bead appearance on it, which is
an indication that AAA has already given birth.

Interposing disavowal or alibi, the accused-appellant simply denied the charges against him. He
claimed that on December 24, 1999 and January 8, 2000, he was in Sariaya, Quezon working in his
tailoring shop.

He further testified that in September 1999, AAA was missing for three (3) days. His family searched
for her and learnt that she had eloped with her sweetheart BBB.

He claimed that it was not his idea to take AAA anywhere, since she was still studying in Quezon
Province. It was AAAs mother who prevailed upon him to bring their daughter to XXX City to prevent
AAA from seeing her friends, who had badly influenced her, as well as her boyfriend, with whom she
later eloped.10

On 5 December 2002, the trial court, convicting accused-appellant of two counts of rape and imposing on him
the death penalty for each count, disposed of the cases as follows:

WHEREFORE, in the light of the foregoing, the accused, JOSE ALVIZO AUDINE, is found GUILTY
beyond reasonable doubt of two (2) counts of Rape (RA 8353) filed against him and is sentenced to
suffer the extreme penalty of DEATH in each case. The accused is further ordered to indemnify the
private complaint in the amount of ONE HUNDRED THOUSAND PESOS (PhP100,000.00) and FIFTY
THOUSAND PESOS (PhP50,000.00) as moral damages so as to serve as deterrent to this disturbing
trend, plus the costs of the suit.11
Ignoring accused-appellants defenses, the trial court ratiocinated:

The accused interposed a number of defenses. First, that of alibi. Jose Audine stated that the
December 24, 1999 and January 8, 2000 alleged rape incidents could not be true as he was already in
Sariaya, Quezon then, having returned to the province right after taking AAA to her cousin Arminda
Arganosas house in XXX. Second, the accused denied having raped her daughter and stressed that
her daughter had ran away with her boyfriend, BBB, in Sariaya, Quezon on September of 1999 giving
an implication that the pregnancy could be attributed to that. He only wanted to stop AAA from seeing
her womanizer-cum-addict boyfriend, BBB. He corroborated AAAs testimony that he filed a rape case
in Sariaya, Quezon against BBB.

However, realizing the futility of his defense, the accused shifted his defense in the middle of the trial.
According to the accused, his cousin Arminda Arganosa was arrested for illegal possession of a big
amount of shabu in Dalampasigan Beach in Dalahican, Sariaya, Quezon, and Arminda suspected that
he was behind her arrest. He also accused Arminda of acting as a "pimp" to her daughter as she
vowed to get even with Jose Audine, an allegation too incredible to believe considering AAAs
pregnancy was very noticeable then. In People vs. Balgos, 323 SCRA 372, it was held that an
"accuseds shift of theory, upon realizing the futility of his earlier defense, rather than help his cause,
only further damaged his credibility."12

Considering that the penalty it imposed was the death penalty, the trial court forwarded the records of the case
to the Supreme Court for automatic review pursuant to Section 10, Rule 122 of the 2000 Rules of Criminal
Procedure.13 However, pursuant to our ruling in People v. Mateo,14 the case was remanded to the Court of
Appeals for appropriate action and disposition.

On 18 February 2005, the Court of Appeals rendered its decision affirming the conviction of accused-appellant,
together with the imposition of the death penalty for each count of rape, but modified the awards of civil
indemnity and damages. The dispositive portion thereof reads:

UPON THE VIEW WE TAKE OF THIS CASE, THUS, the appealed Decision dated December 5, 2002
of the Regional Trial Court of Marikina City, Branch 272, in Criminal Cases Nos. 2001-4093-MK and
2001-4094-MK, finding the accused-appellant JOSE ALVIZO AUDINE guilty beyond reasonable doubt
of two counts of rape and sentencing him in each case to suffer the penalty of death is AFFIRMED,
with the MODIFICATION that for each count of rape, the accused-appellant is also CONDEMNED to
pay the private complainant, AAA, the amounts of P75,000.00 as civil indemnity, P50,000.00 as moral
damages, and P25,000.00 as exemplary damages.

Should no motion for reconsideration be filed in this case by the accused-appellant within the allowable
reglementary period, or after the lapse thereof, let the entire records of this case be forwarded to the
Honorable Supreme Court for appropriate action hereon.15

On 15 March 2005, accused-appellant filed a motion for reconsideration16 of the decision but same was denied
by the Court of Appeals on 28 June 2005.17 In accordance with Section 13, paragraph 2 of Rule 124, the entire
records of the case were elevated to the Supreme Court for review. Thereupon, the parties were required to
submit supplemental briefs within thirty (30) days from notice.18 Accused-appellant opted not to file a
supplemental brief on the ground he had exhaustively argued all the relevant issues in his appellants brief. On
the part of the Office of the Solicitor General, despite notice, no response was received therefrom.

Accused-appellant makes a lone assignment of error:

THE COURT A QUO GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE

THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 19

In trying to discredit private complainant AAA, accused-appellant cites several circumstances that tend to
create doubt as to his guilt, to wit: (1) It is quite unimaginable how the accused-appellant could still manage to
undress AAA while he was holding her hands and at the same time pointing a knife at her who was then putting
up a fight; (2) It is unbelievable that accused-appellant could have penetrated her considering that she was
kicking him while he was inserting his penis into her vagina; (3) The failure of AAA to exercise any precaution in
securing herself, like locking her room or arming herself with a weapon, to prevent accused-appellants sexual
advances considering her alleged horrible experience with accused-appellant; (4) The delay in reporting the
incidents notwithstanding the absence of the accused-appellant who was in the province all the time, renders
doubtful her charges of rape; (5) The charges of rape were filed by AAA as revenge against accused-appellant
whom she considered as the person who separated her from her lover; (6) AAAs admission that she executed
a sworn statement charging BBB with rape which she later recanted, indicates that she can concoct untruthful
stories under oath.

In the review of rape cases, we are almost invariably guided by the following principles: (1) an accusation of
rape can be made with facility; it is difficult to prove but more difficult for the accused, though innocent, to
disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the
testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the
prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of
the evidence for the defense.20

Accused-appellants contention that he could not have committed the rapes the way private complainant
described them deserves scant consideration. We fully agree with the Court of Appeals when it ruled:

AAA never testified that the accused-appellant undressed her, while he was holding her hands and
pointing a knife at her, as the accused-appellant seems to suggest. A plain reading of AAAs testimony
during her direct examination shows that such acts of the accused-appellant were done at different
points in time.

We also fail to see anything extraordinary or unbelievable in AAAs testimony that despite her act of
kicking the accused-appellant he still succeeded in inserting his penis into her vagina. While it may be
admitted that AAAs act of kicking made penetration somewhat difficult, it certainly did not render the
satyrs maniacal attack irresistible, nor his penetration into the citadel of his daughters purity anything
impossible.21

Private complainant is being faulted for not taking the necessary measures to prevent a recurrence of her
horrible experience with accused-appellant last 24 December 1999. Her failure to perform what accused-
appellant claims she ought to have done cannot be taken against her. A fourteen-year old girl cannot be
reasonably expected to exercise or put into place any measure that would avert the repetition of the ordeal with
her father. How the victim comported herself after the incident was not significant as it had nothing to do with
the elements of the crime of rape.22 Not all victims can be expected to act conformably to the usual
expectations of everyone. Different and varying degrees of behavioral responses are expected in the proximity
of, or in confronting, an aberrant episode. It is settled that different people react differently to a given situation
or type of situation and there is no standard form of human behavioral response when one is confronted with a
strange, startling or frightful experience.23 The workings of the human mind when placed under emotional stress
are unpredictable.24 This Court, in People v. Luzorata,25 held:

This Court indeed has not laid down any rule on how a rape victim should behave immediately after
she has been abused. This experience is relative and may be dealt with in any way by the victim
depending on the circumstances, but her credibility should not be tainted with any modicum of doubt x
x x.

Private complainant narrated in a clear and straightforward manner her harrowing experience. The trial court
and the Court of Appeals gave credence to her testimony. She recounted her ordeal as follows:

PROS. REMOLETE

Q. Instead of bringing you to Bulacan, your father brought you here in XXX?

A. Yes, sir.
Q. In that same day and time, do you remember of any unusual incident that happened?

A. He brought me to the house of his cousin and let me lived there, sir.

Q. On December 24, 1999 in the afternoon, do you remember of anything unusual incident that
happened to you?

A. Yes, sir.

Q. Where were you then?

A. Inside the house of my aunt, sir.

Q. Her house at XXX?

A. Yes, sir.

Q. Who was your companion?

A. None, sir.

Q. While alone in that house and you said an unusual incident happened to you, what was that
unusual incident that happened to you?

A. I was raped by my father, sir.

Q. Will you kindly inform this Honorable Court how that incident happened?

A. I was alone in the house then my father raped me, sir.

Q. Do you know where your father came from?

PROS. RAMOLETE:

May I make it of record that the victim is crying Your Honor.

A. He went out, I thought I was alone in the sala but he suddenly entered, sir.

Q. When your father suddenly entered, what happened next?

A. He touched my body and told me not to report it to anybody and he brought me inside the room, sir.

Q. What particular part of your body did he touch?

A. On my thigh, sir.

Q. What were you doing in the sala when your father arrived and touched you?

A. I was reading magazines, sir. He told me to go inside the room and he told me to get his clothes in
the masters bedroom, sir.

Q. Did you in fact get his shirt inside the master bedroom?
A. He followed me inside the room and pushed me to the bed, sir.

Q. What did you do when your father followed you and pushed you in the bed?

A. I fought back but he boxed me on the abdomen "puson," sir.

Q. What else did your father do to you if any?

A. He undressed me, sir.

Q. How did he undress you?

A. He pulled my dress and took off my shorts sir.

Q. Were you able to get out of the masters bedroom?

A. No, sir because the door was locked and he was already holding me and I could not free myself.

Q. Who locked the door?

A. My father, sir.

Q. What did you do when your father undressed you?

A. I was fighting and pleading with him not to do it, sir.

Q. Were you able to fight him back?

A. No, sir because he was holding my hand, sir.

Q. Did he listen to your plea?

A. No, sir.

Q. So what happened next?

A. After raping me he left me inside and locked the door, sir.

Q. How did he rape you?

A. He undressed me and kissed the parts of my body and laid on top of me, sir.

Q. What do you mean when you said he placed himself on top of you?

A. He made sexual intercourse, sir.

Q. Go directly to the point.

A. He inserted his penis into my vagina, sir.

Q. Did you feel his penis inside your vagina?

A. Yes, sir.

Q. What did you feel?

A. It was painful, sir.

Q. What did you do while the accused was inserting his penis into your vagina?

A. I was kicking him, sir.

Q. Why did you kick him?

A. So he might not pursue what he was doing to me, sir.

Q. Did he stop that thing being done to you?

A. No, sir.

Q. After that after he inserted his penis into your vagina, what happened?

A. After raping me he told me not to tell it to anybody.

Q. What did you do when he was telling you that?

A. I was afraid, sir.

Q. Afraid of whom?

A. Afraid of my father, sir.

Q. Why were you afraid?

A. Because he was pointing a knife on me, sir.

Q. How big is that knife?

A. It was a small knife, sir.

Q. What kind of knife was it?

A. Kitchen knife, sir, my aunt used in the kitchen, sir.

Q. At what point in time did he point that knife to you after he inserted his penis or before?

A. Before he raped me and afterwards, sir.

Q. Aside from pointing that knife to you, what else did he do if any?

A. When I cried, he slapped me, sir.

Q. Was this incident repeated again?

ATTY. LARRACAS:

Objection Your Honor.

PROS. RAMOLETE:

I will reform my question.

Q. At noontime of January 8, 2000, where were you Miss Witness?

A. I was at home, sir.

Q. Who were your companions, if any?

A. None, sir.

Q. Do you remember of any incident that happened to you?

A. Yes, sir.

Q. What was that unusual incident?

A. I was raped again by my father, sir.

Q. Will you kindly inform his Honorable Court what happened?

A. I was sleeping at that time, sir.

Q. Where were you sleeping?

A. Inside the room, sir.

Q. Whose room?

A. My aunt and my room, sir.

Q. Were you awakened from your sleep?

A. Yes, sir.

Q. Why were you awakened from your sleep?

A. I felt something pressing on my thigh, sir.

Q. Upon feeling something pressing your thigh, what did you do?

A. I was able to stand when I saw my father, sir.

Q. What happened next?

A. He pointed his knife to me again and undressed me, sir.

Q. At what part of your body did he point that knife to you?

A. To my abdomen, sir.

Q. Was that the same knife that he used on December 24, 1999?

A. Yes, sir.

Q. What did you feel when he pointed that knife to your abdomen?

A. I was frightened that he might repeat again what he did to me, sir.

Q. What else transpired?

A. He repeated raping me, sir.

Q. What did you do when he pointed that knife in your stomach?

A. I shouted and fought him but he boxed me in the stomach, sir.

Q. What happened next?

A. I found it difficult to fight him back, sir.

Q. What happened next?

A. He was able to insert his penis into my vagina, sir.

Q. How did he insert his penis into your vagina?

A. At first, he masturbated and then he inserted his penis into my vagina, sir.

Q. What was his position when he inserted his penis into your vagina?

A. He was on top of me, sir.

Q. Did you feel his penis inserted into your vagina?

A. Yes, sir.

Q. What did you feel?

A. I was hurt, sir.

Q. What did you do when your father inserted his penis into your vagina?

A. I tried to fight but he was pointing his knife at me, sir.

Q. Were you able to do anything?

A. None, sir.
 Q. After that what happened next?

A. He left the house and went home to the province sir.

Q. What did you do after he was through with his act?

A. I was afraid because everytime he finished what he did to me, he threatened me not to report the
matter to anybody or else he will kill me and my siblings, sir.26

After a review of the testimony of the private complainant, We find no compelling reason to reverse the findings
of the trial court, as affirmed by the Court of Appeals. When it comes to credibility, the trial courts assessment
deserves great weight, and is even conclusive and binding, if not tainted with arbitrariness or oversight of some
fact or circumstance of weight and influence. The reason is obvious. Having the full opportunity to observe
directly the witnesses deportment and manner of testifying, the trial court is in a better position than the
appellate court to evaluate properly testimonial evidence.27 In the case at bar, there being overwhelming
evidence showing that on 24 December 1999 and 8 January 2000 appellant had carnal knowledge of private
complainant by means of force, coercion and intimidation, we have no reason not to apply the rule and to apply
the exception.

Accused-appellant interposed the defense of denial and alibi. No jurisprudence in criminal law is more settled
than that alibi is the weakest of all defenses for it is easy to contrive and difficult to disprove, and for which
reason it is generally rejected.28 For the defense of alibi to prosper, it is imperative that the accused establish
two elements: (1) he was not at the locus delicti at the time the offense was committed; and (2) it was
physically impossible for him to be at the scene at the time of its commission. 29

In the case at bar, accused-appellant claimed that on 24 December 1999 and 8 January 2000, he was in
Sariaya, Quezon working in his tailoring shop. He, however, did not present any witness to corroborate such
claim. Unsubstantiated by clear and convincing evidence, his alibi is self-serving and deserves no weight in
law; thus, same must necessarily fail. An alibi must be supported by credible corroboration from disinterested
witnesses, and where such defense is not corroborated, it is fatal to the accused. 30 Uncorroborated alibi must
be disregarded.31

Accused-appellant further argues that the delay in reporting the incidents renders doubtful private
complainants charges of rape.

We are not persuaded. The delay and initial reluctance of a rape victim to make public the assault on her virtue
is neither unknown nor uncommon. Particularly in incestuous rape, this Court has consistently held that delay in
reporting the offense is not indicative of a fabricated charge.32 It has been repeatedly held that the delay in
reporting a rape incident due to death threats cannot be taken against the victim.33 The charge of rape is
rendered doubtful only if the delay was unreasonable and unexplained. In this case, private complainant, who
was fourteen years old when she was ravished, satisfactorily explained why she did not immediately report the
matter to anybody. She revealed that she is afraid of her father and that the latter threatened to kill her and her
siblings if she would divulge the sexual attack on her.34 Accused-appellant, being her father, exercises moral
ascendancy and influence over her. Thus, her reluctance that caused the delay should not be taken against
her. Neither can it be used to diminish her credibility nor undermine the charge of rape.

The fact of delay does not necessarily lead to an acquittal. In several cases we have decided, 35 the delay lasted
for two years or more; nevertheless, the victims were found to be credible. As above-mentioned, we found the
delay to be reasonable and sufficiently explained. The testimony of the victim herself has convinced the Court
that her accusation has a ring of truth sufficient to justify the conviction of appellant.

The defense tried to impute ill motive on private complainant claiming that the latter filed the two cases of rape
to exact revenge because he separated private complainant from her lover-boyfriend.

We find this hard to believe. Motives such as feuds, resentment and revenge have never swayed us from
giving full credence to the testimony of a minor complainant.36 This Court has held time and again that
testimonies of rape victims who are young and immature deserve full credence, considering that no young
woman, especially of tender age, would concoct a story of defloration, allow an examination of her private
parts, and thereafter pervert herself by being subject to a public trial, if she was not motivated solely by the
desire to obtain justice for the wrong committed against her.37 It is highly improbable that a girl of tender years,
one not yet exposed to the ways of the world, would impute to any man a crime so serious as rape if what she
claims is not true.38 Youth and immaturity are generally badges of truth.39 Full weight and credit should, indeed,
be accorded AAAs testimony. It is very unlikely for her to accuse her father of so heinous a crime if it were not
true. Her credibility was bolstered beyond reproach by her spontaneous emotional breakdown during trial. 40

So traumatized by her horrific experience with her father, private complainant testified that, in the event her
father is found guilty, she will not regret or repent if he is sentenced to death because she only wants justice for
what he did to her.41 Furthermore, her refusal to reveal in the Birth Certificate the name of the father of her child
indicates that it was accused-appellant who sired her son. She testified:

ATTY. LARRACAS:

Q. You did not indicate the name of your father as the father of your child?

A. No, maam.

Q. Why did you not place the name of your father?

A. Because his name if I would place the name of my father it will be shameful and embarrassing if
they find out that the father of my child is my father, maam.42

A child of tender years will not make these declarations unless the bestial attacks on her were not truly
perpetrated by her father.

The contention of the defense that private complainant cannot be considered a credible witness because she
has the propensity to concoct untruthful stories under oath in light of her admission that she executed a sworn
statement charging BBB with the crime of rape which she later recanted, deserves scant consideration.

Private complainant explained to the satisfaction of this Court that she was merely forced by her father to
execute a sworn statement against BBB that the latter raped her.43 It is very apparent that she was under her
fathers moral authority and influence. This ascendancy, together with the threats from her father, is so great
that private complainant failed to resist or overcome it.

The pertinent provisions of the Revised Penal Code relative to the case on hand are Articles 266-A and 266-B,
which read:

Art. 266-A. Rape; When and How Committed. Rape is committed

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

a) Through force, threat, or intimidation;

xxxx

Art. 266-B. Penalties.

xxxx

The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:
 1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent of the victim.

For one to be convicted of qualified rape, at least one of the aggravating/qualifying circumstances mentioned in
Article 266-B of the Revised Penal Code must be alleged in the information and duly proved during the trial. 44 In
the instant case, since the special qualifying circumstances of the victims minority and her relationship with the
offender have been properly alleged in the informations and established during trial, the imposition of the death
penalty for each count of rape is justified.

With the effectivity,45 however, of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death
Penalty in the Philippines," the imposition of the supreme penalty of death has been prohibited. Pursuant to
Section 2 thereof, the penalty to be meted on accused-appellant shall be reclusion perpetua. Said section
reads:

SECTION 2. In lieu of the death penalty, the following shall be imposed:

(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the
penalties of the Revised Penal Code; or

(b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of
the penalties of the Revised Penal Code.

Notwithstanding the reduction of the penalty imposed on accused-appellant, he is not eligible for parole
following Section 3 of said law which provides:

SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will
be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No.
4103, otherwise known as the Indeterminate Sentence Law, as amended.

As regards the award of damages for each count of rape, the same must be modified. The P100,000.00
awarded by the trial court as civil indemnity46 was properly reduced by the Court of Appeals to P75,000.00
which is the amount awarded if the crime is qualified by circumstances which warrant the imposition of the
death penalty.47 With respect to moral damages, the amount of P50,000.00 awarded by both the trial court and
the Court of Appeals must be increased to P75,000.00 without need of pleading or proof of basis
thereof.48 Moreover, the P25,000.00 awarded by the Court of Appeals as exemplary damages was proper due
to the presence of the qualifying circumstances of minority and relationship.49

WHEREFORE, all the foregoing considered, the decision of the Court of Appeals dated 18 February 2005
finding accused-appellant Jose Alvizo Audine guilty beyond reasonable doubt of two counts of qualified rape
is AFFIRMEDwith the MODIFICATION that each penalty of death imposed on appellant is reduced to reclusion
perpetua without eligibility to parole pursuant to Republic Act No. 9346. He is also ordered to pay private
complainant AAA, for each count of rape, the amount of P75,000.00 as civil indemnity, P75,000.00 as moral
damages and P25,000.00 as exemplary damages. Costs against accused-appellant.