People vs Tayag : 132053 : March 31, 2000 : J. Puno : First Division

FIRST DIVISION

[G.R. No. 132053. March 31, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO TAYAG y LUCIANO, accused-appellant. Lexjuris

D E C I S I O N

PUNO, J.:

Accused- appellant Danilo Tayag appeals his conviction for forcible abduction with rape committed against the 9 year old[1] Lazel Tan. The information[2] alleges:

"That on or about February 23, 1991, in the City of Manila, Philippines, the said accused did then and there wilfully, unlawfully and feloniously abduct, take and carry away said LAZEL TAN Y CARABEDO, a minor, 10 years of age, by means of force and violence, to wit: by then and there covering her mouth with a towel and bringing her under the coconut tree, against her will and consent and with lewd designs, and once there, said accused, by means of force and intimidation, by then and there inserting the towel in her mouth, tying her in a tree, kissing and biting her lips, slashing her neck and left leg, boxing her twice in the belly, threatening to kill her should she resist and had carnal knowledge of her against her will."

Prosecution evidence show that on February 3, 1991 at about 9 P.M., while Lazel was watching a dance at Brgy. 656, Zone 69, Maestranza Compound, Intramuros, Manila, the accused seized her hands from behind. He gagged her mouth with a towel and pushed her toward his house. With a bolo, he drew her to a nearby coconut tree. He tied a towel on her head, raised her hands and bound them to the trunk. He also secured her feet at the trunk, pressed the bolo against her legs then kissed and bit her lips. Next, he hit her on the stomach and she lost consciousness.[3]

When Lazel recovered consciousness, she felt pain all over her body. The accused approached her and dealt her another blow. Again, she fainted. When she revived, the accused sliced her left leg with his bolo. At this point, Lazel realized that her panty had been taken off. Her private part ached. Jlexj

The accused threatened to put her in a sack and throw her at the river. He left, purportedly to get the sack while Lazel remained tied to the tree. Frightened by his threat, Lazel began tugging her hands. She succeeded freeing both hands. She put on her panty and ran home. She went straight to bed. Her sister asked her where she had been. Lazel did not answer afraid that the accused might execute his threat to kill her if she told anyone about the incident.[4]

Lazel prepared to go to school the following morning despite her ordeal that evening. She changed her clothes and saw blood on the underwear she wore.[5] She walked with her mother, Jovita, to school. Jovita saw the wound on her leg. She asked Lazel how she was wounded. Lazel replied that she slipped on the aisles at school. She lied distressed by the threat of the accused.

At school, her classmate named Mary Grace, likewise noticed her wound. She asked Lazel about it and this time, Lazel revealed everything to her. Mary Grace informed their teacher that Lazel was molested. Their teacher in turn passed the information to their principal. Lazel and her mother were called for a meeting. Lazel recounted to them the hideous episode. After discussing what should be done, Lazel and her mother reported to the police. Lazel executed a statement[6] and underwent a medical examination.[7]

Dr. Marcial Cenido found a superficial laceration on Lazel's tongue, abrasions at the lower labial region of the lower lip, left and right side of the neck, upper middle third left anterior thigh and lower third left anterior thigh. Her hymen, although still intact, bore a slight reddening at 3 o' clock position.[8]

The police launched a manhunt against the accused. They did not find him. In the meantime, Lazel went to their province to forget the incident. Court

In February 1994, the accused's common-law wife, Amelia Yumang, visited Lazel's mother and disclosed that the accused had raped his daughter. She revealed the whereabouts of the accused which they reported to the police. Accompanied by policemen, they proceeded to the vicinity of Jade Vine Restaurant where the accused was arrested. Jovita then brought Lazel to the police station to identify the accused. Lazel executed another statement.[9]

The accused, a former neighbor of Lazel, denied the charges against him. He claimed that he is not Mang Boy whom Lazel referred to in her statement. Lazel knew him as Mang Danny. Other people call him Danny Buko because he sells coconuts. He alleged that at the time of the incident, he was with his children waiting for his common-law wife in front of Alemar's. They spent the night there on cardboard boxes.

The accused added that he did not hide from the police. All the while, he sold coconuts in front of Jade Vine Restaurant until he was arrested. In 1991, he lived at Maestranza compound. In 1992, he met his second live-in partner, Mercy Anza, and cohabited with her at Balut, Tondo, Manila. He parted with Amelia because of a serious quarrel about her drinking. Amelia went to Lubao, Pampanga where she married another man. She brought with her their children. Supreme

The accused alleged that the charges originated from Amelia's hatred against him. Once, Amelia and Mercy had a squabble. He sided with Mercy and slapped Amelia. Amelia asked him to leave Mercy and live with her again, or else, she would put him in jail. He refused and challenged Amelia to do anything she wants.

The next day, four (4) policemen arrested him. They took him to the General Assignment Division, Western Police District Command (WPDC) where they forced him to admit that he was Mang Boy. He denied he was Mang Boy and insisted he was Mang Danny. He was kicked, boxed and thrown down the stairs. They forced him to sign the Booking and Information Sheet.[10]

The son of the accused, Dennis Tayag,[11] corroborated his defense. Dennis declared that they were selling coconuts at Ermita at the time of the incident. After selling coconuts, Dennis went with his mother at Casino where they sold Sweepstakes tickets up to 12 P.M. His other siblings remained with his father in front of Alemar's. Sjcj

He was with the accused when the latter was arrested on February 1994. Dennis read the news reports about his father's arrest and the alleged rape of his sister. He asked his sister and mother about them. His sister cried and denounced them as lies. His mother answered that somebody induced her to cause the arrest of the accused. Nonetheless, his mother and uncle prevented him from making statements in favor of his father.[12]

The trial court convicted the accused. It did not believe his defense and branded it an exercise in futility. It did not give any weight to the testimony of Dennis because of his filial relationship and held that his testimony contradicted that of the accused's. It observed that Lazel was straightforward, positive and convincing on the witness stand. It appreciated her lack of motive to falsely testify against the accused.[13]

The dispositive portion of the Decision reads: Scjj

"WHEREFORE, PREMISES CONSIDERED, the prosecution having fully established the guilt of the accused beyond reasonable doubt, this Court finds him, DANILO TAYAG Y LUCIANO, GUILTY beyond reasonable doubt of the complex crime of Forcible Abduction with Rape under Article 48 in relation to Article 335 and 342 of the Revised Penal Code of the Philippines as charged in the information, and hereby sentences him to suffer the penalty of Reclusion Perpetua with all the accessory penalties provided by law; to indemnify the private complaint the sum of Fifty Thousand (P50,000.00) Pesos by way of moral damages; and to pay the cost of this suit."[14]

In this appeal, accused-appellant assigned a single error committed by the trial court, viz.:

THE COURT A QUO GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF FORCIBLE ABDUCTION WITH RAPE. Jjsc

Accused-appellant contends that if Lazel's story was true, other people should have witnessed her abduction. In addition, he could not have raped Lazel while she was tied around the coconut tree as she claimed that her feet were tied together. He argues that in this position, coitus is impossible. He stressed that Lazel did not even see him naked nor insert his private part in her sex organ. Even the medico-legal finding shows that there was no laceration on Lazel's hymen.

The appeal is partly meritorious.

First. Accused-appellant's contention that it is unbelievable that no one witnessed Lazel's abduction has no merit. Lazel's testimony explains why no one witnessed her abduction. Accused-appellant grabbed her from a distance of about five meters at the back of the crowd watching the party.[15] She did not call for help because she thought it was her sister who clutched her hand behind her body. Her fear had already paralyzed her when she realized she was mistaken. While being pulled away from the crowd, she tried to free herself but failed as accused-appellant held her tightly and covered her mouth with a towel.[16] This prevented her from shouting despite the presence of houses along their way. She did not see any people on the path they travelled for it was dark.[17]

Second. Although the prosecution has proven that Lazel was sexually abused, the evidence proferred is inadequate to prove she was raped. Evidence of carnal knowledge is necessary in rape. Lazel entertained the belief that she was raped because when she regained consciousness, she felt pain all over her body and her private part. The trial court found that Lazel was sexually abused because of her belief.[18] It then equated sexual abuse with rape by using the numerous rulings of this Court that: Edpmis

"Under settled jurisprudence, it need not be medically shown that there is full intrusion of the male organ in the woman's sex organ, for in the crime of rape, complete or full penetration of the complainant's private part is not necessary. Neither is rapture (sic) of the hymen essential. What is fundamental is that the entrance or the introduction of the male organ into the labia of the pudendum is proved. The mere introduction of the male organ into the labia majora of the victim's genetalia (sic) and not the full penetration of the complainant's private part consumates (sic) the crime. xxx. In fine sum, it is not ejaculation but penetration, however slight, which constitutes the crime of rape. (People vs. Abiera, 222 SCRA 378)."[19]

In the case at bar, there is no evidence of entrance or introduction of the male organ into labia of the pudendum. The medico-legal finding and Lazel's testimony did not establish that there was penetration by the sex organ of accused-appellant or that he tried to penetrate her. Dr. Manuel Lagonera, a colleague of Dr. Cenido, who interpreted the medico-legal report testified that the victim was still a virgin during the time of the examination because her hymen was intact. Her hymen bore a slight reddening that was possibly caused by trauma, by a blunt object, by scratching or self-manipulation, or by a male sex organ. He opined that possibly, there was slight penetration.[20]Misoedp

Lazel recounted that after accused-appellant tied her around the coconut tree, he kissed and bit her lips. He followed it up with a blow on her stomach that knocked her out. When she recovered, accused-appellant delivered to her another blow which again caused her to black-out. When Lazel woke up, her panty has been taken off ad she felt pain all over her body including her private part. She did not, however, see the accused-appellant naked or penetrate her. When accused-appellant left her and she succeeded in freeing herself, she put on her panty, ran home and slept. She woke up in the morning and changed her stained underwear.[21] She believed that accused-appellant sexually abused her but does not know how he did it.[22]

Removal of underwear, a reddening hymen, an aching private part and blood on the underwear do not prove carnal knowledge. The removal of the victim's underwear is at most a preparation to engage in sexual intercourse. The reddening hymen could have been caused by a male sex organ but that is just a possibility. In the case at bar, considering the age of the victim and the condition of her hymen, there should be laceration if there was penetration by an adult male sex organ.[23] The aching private part could well be part of the over-all effect of her beating. The blood on the panty discovered by Lazel after she woke up could have come from the wound inflicted on her leg. It is easy to speculate that Lazel was raped. But in criminal cases, speculation and probabilities cannot take the place of proof required to establish the guilt of the accused beyond reasonable doubt. Suspicion, no matter how strong, must not sway judgment.[24]

It is unjust to convict accused-appellant for forcible abduction with rape simply because he can only offer the defense of alibi. Alibi is not weak if it has the ring of truth. Moreover, criminal cases are decided not on the basis of the weakness of the defense but on the strength of the evidence mustered by the prosecution. This is founded on the presumption of innocence accorded to every accused. Misedp

Accused-appellant is not, however, off the hook. The prosecution proved the crime of forcible abduction. It established that accused-appellant took Lazel against her will and with lewd designs. The word "lewd" is defined as obscene, lustful, indecent, lascivious, lecherous. It signifies that form of immorality which has relation to moral impurity; or that which is carried on in a wanton manner.[25] The medico-legal finding and Lazel's testimony, although insufficient to prove rape, buttress the conclusion that accused-appellant had lewd designs when he abducted Lazel.

Article 342 of the Revised Penal Code defines and punishes forcible abduction. It provides:

Art. 342. Forcible abduction. The abduction of any woman against her will and with lewd designs shall be punished by reclusion temporal.

The same penalty shall be imposed in every case, if the female abducted be under twelve years of age. Edp

Considering the circumstances of this case, the accused-appellant should also be made liable for moral damages. Aside from the physical sufferings of Lazel, her studies were affected. She sometimes spends the night awake thinking about her misfortune.[26] Moral damages may be recovered in cases of abduction.[27]

IN VIEW WHEREOF, the decision convicting accused-appellant of forcible abduction with rape is modified. Accused-appellant is convicted for forcible abduction and is sentenced to suffer 12 years of prision mayor to 17 years and 4 months of reclusion temporal and to pay the victim P30,000.00 as moral damages. No costs. Edpsc

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

[1] Lazel was born on August 15, 1981. See Certificate of Live Birth, Exhibit "B", Records, p. 152. The crime was committed on February 1991.

[2] Filed by Assistant City Prosecutor Antonio J. Ballena; Rollo, p. 1.

[8] See Medico Legal Report, Records, p. 153, Exhibit "C".

[10] Exhibit "1", Exhbit "E" for prosecution, Records, p. 155.

[11] Records show that he was not cross examined by the prosecution, see Order dated September 3, 1996, Records, p. 230 and Order dated October 8, 1996, Records, p. 237.