EN BANC
[G.R. No. 126359.
October 25, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARLITO OLIVA y SALAZAR, accused-appellant.
D E C I S I O N
PER CURIAM:
On automatic review is the
decision[1] dated September 12, 1996, of the Regional Trial Court
of Parañaque City, Branch 259, in Criminal Case No. 96-361, convicting
appellant Carlito Salazar Oliva for Kidnapping with Rape and imposing upon him
the penalty of death.
Upon the complaint by Remedios
Baldon, on behalf of her five and one-half-year-old daughter, Analyn Baldon,
appellant Carlito Salazar Oliva was charged as follows:
That on or about the 4th day of April 1996 in the Municipality of Parañaque, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused a private individual, did then and there willfully, unlawfully and feloniously kidnap and detain one Analyn Baldon, 5 1/2 years old, by then and there taking away said minor, against the will of the minor's mother;
That on the occasion of the said kidnapping the above-named accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of said victim, against her will.
CONTRARY TO LAW.[2]
On arraignment, appellant pleaded
not guilty. Thereupon, trial proceeded.
The prosecution presented as
witnesses Analyn Baldon, Remedios and Elmer Baldon, Elmer Reyes, and Rudy
Javier Jerusalem.
The first witness, REMEDIOS
BALDON, testified that she and Elmer Baldon are the parents of Analyn Baldon,
the victim. They live in Lower Sta.
Ana, Barangay Sun Valley , Parañaque City with their two (2) children, Analyn
and Elmy, five and one-half (5 1/2) years old and three (3) years old,
respectively. She stated that Analyn
was born on November 5, 1990 (Exhibit A).[3] On April 4, 1996 about 4:00 P.M., she and Elmer,
together with Analyn and Elmy, were walking towards the basketball court at the
plaza of Lower Sta. Ana, Barangay Sun Valley, Parañaque City. Elmer saw appellant,
who was called "Inggo", having a drinking spree at a store about
fifty (50) meters away from the basketball court with Elmer's cousin, Oscar,
and Alfredo Reyes. When appellant saw
Elmer, he gave him a shot of gin. Elmer
then asked permission to leave and rejoin his family. Appellant was known to her for about a year. He was an uncle of her cousin.[4]
She testified that at the plaza
Analyn was playing with her cousins, Karen and Ching-Ching, when she saw
appellant approach Analyn and give her P100.00 and another P1.00
to buy barbecue. She scolded Analyn
when she saw her take the money, but Analyn replied that the money had been
given to her. After eating at the plaza, Remedios went home with Elmy, leaving
behind Analyn who asked for more time to play at the plaza.
She further testified that at 6:30
P.M. she fetched her husband, Elmer, from the house of his in-law (bilas) for
supper at home. Elmer asked her about
their children. She told him that
Analyn asked permission to play at the basketball court. Before 7:00 P.M., Elmer and Remedios went
back to the basketball court to look for Analyn but they could not find her
there. They inquired from the people
around, and a certain Elmer Reyes answered that he saw Analyn with appellant.[5]
Elmer and the witness proceeded to
appellant's "barong-barong" at Lower Sta. Ana, Sun Valley,
Parañaque City, but appellant was not there.
They learned from appellant's neighbor that Elmer did not stay there but
across the creek ("kabilang sapa"). They did not find him
there either. They went back to appellant's "barong-barong" because
somebody told them that appellant was still living there. When they reached the "barong-barong",
they learned appellant had been there with a child. Since they could not find Analyn, they
reported her missing to Barangay Tanod Rudy Jerusalem of Barangay Sun Valley,
Parañaque City. The witness said she
went home, while Elmer hired a tricycle to look for Analyn.[6]
About 4:45 A.M. next morning,
April 5, 1996, Analyn came home. The
witness said she noticed that Analyn' s pair of shorts was dirty, and had dried
mucus in front of the inner thigh. She asked what happened but Analyn just
cried, and refused to talk. When she
asked "Sinabihan ka ba na huwag kang magsusumbong?" Analyn had
answered, "Opo". Asked
where she had been taken, Analyn answered, "damuhan". The witness said she inspected Analyn's
body and found that she had plenty of mosquito bites. Then she let Analyn sleep.
When Analyn woke up, the witness cleaned her up and saw that Analyn' s
vagina was swollen and had a wound.[7] She then asked Analyn if Inggo was the one who
molested her and she answered in the affirmative. They then went to the police station where she filed a complaint
dated April 5, 1996 and from there they brought Analyn to the NBI where she was
examined.
RUDY JERUSALEM, Barangay Tanod at
Barangay Sun Valley, Parañaque City, was the second witness for the
prosecution. He testified that on April
4, 1996, about 9:00 P.M., he received a complaint filed by Remedios Baldon that
her daughter, Analyn, was missing and was last seen in the company of
appellant; that on April 5, 1996, about 6:30 P.M., he and another Barangay
Tanod, Jesus Malsada, arrested appellant; that Remedios Baldon positively
identified appellant as the one who took Analyn away; and that he and Jesus
Malsada executed a "Pinagsamang Salaysay" about the incident.[8]
DR. VALENTIN BERNALES,
medico-legal officer of the NBI, was the third witness. He testified that he
conducted a physical examination on Analyn Baldon.[9] In his Medico-Legal Report No. MG 96-518 (Exhibit D),
he stated:
Genital examination:
...Hymen, short, thin with superficial, incomplete laceration at 7:00 o'clock position corresponding to the face of a watch, edges congested; ...Hymenal orifice admits a tube of 1.0 cm. in diameter. Vaginal walls and rugosities can not be reached by an examining finger.
CONCLUSIONS:
1. No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination.
2. Vaginal and hymenal
laceration, present.[10]
The fourth prosecution witness,
ELMER REYES Y MUÑOZ, 30 years old, testified that on April 4, 1996 at around
7:00 P.M., he was tending the store of his sister located along Sta. Ana, Sun Valley,
Parañaque, when he saw appellant with Analyn.
He stated that he saw appellant with Analyn walking towards the wet
market ("talipapa") area, Lower Sta. Ana, Sun Valley,
Parañaque, Metro Manila. He added that he was not related to the family of the victim.[11]
ELMER BALDON, father of the victim
and the fifth witness corroborated part of the testimony of Remedios
Baldon. He testified that at about 4:00
P.M. of April 4, 1996 he and his wife, Remedios, and their two children,
Analyn, 5 1/2 years old and Elmy, 3 years old, were on their way to the
basketball court when they happened to pass by the place where appellant Oliva
was drinking with his (Elmer) cousin Oscar and Alfred Reyes. Appellant Oliva, also known as "Inggo",
gave him a shot of gin and after taking it he asked permission to leave and
they then proceeded directly to the basketball court. Elmer chatted with his "bilas" up to about 6:30
P.M. while his wife went home with the children to prepare their supper. Later, he was fetched by his wife to have
their supper and he asked her about Analyn because she arrived only with Elmy
and his wife replied that Analyn asked permission to play while she was
cooking. They started looking for
Analyn and when they inquired from the people in the basketball court near a
store, one Elmer Reyes told them that he saw their daughter with the
appellant. Thereafter, they proceeded
to the place where the appellant was residing.
Not finding him there, they sought help from the barangay tanod but
they failed to locate Analyn.
Elmer Baldon recalled that he
hired a tricycle to look for Analyn around nearby Multinational Village,
Parañaque City. Failing to find her
there, he returned to the basketball court and stayed there until about 4:45
A.M. of April 5, 1996, when his wife fetched him and told him that Analyn was
already home. Elmer asked Analyn where
she had been taken and she told him appellant took her to a grassy area. As Elmer was going out of his house to look
for appellant, he saw appellant being accompanied by a barangay tanod. When Elmer confronted him, appellant
berated him and denied taking Analyn.
Thereafter, he recalled, Remedios
and he took Analyn to the Parañaque Police Station. A policeman examined the private part of Analyn and saw sperm on
it. Remedios executed a Sworn Statement
("Sinumpaang Salaysay")[12] at the
Parañaque Police Station. They were told to take Analyn to a hospital for
examination. While at the Parañaque
Police Station, Elmer saw appellant being investigated and he heard him saying
before the police investigator that he just masturbated over his child. ("Sinalsalan
lang niya ang anak ko".) Analyn underwent physical examination at the
National Bureau of Investigation (NBI).[13]
The five-year old victim, ANALYN
BALDON, was the last witness presented by the prosecution. She testified that she knew appellant. She said that appellant took her to a grassy
area, kissed her on the lips and without taking off her clothes, appellant
removed her panty and then inserted his penis inside her vagina. Appellant told her "Huwag kang
magsusumbong kay Mama at Papa". From
the grassy area, they went to the house of appellant where they slept. When she
woke up, appellant brought her to the house of her "Ate Eva" and then
Analyn went home, while appellant took a tricycle and left.[14]
The defense presented as its lone
witness appellant, CARLITO OLIVA y SALAZAR, 50 years old and single. He studied
only up to Grade II and worked as a construction worker. He testified that he was previously charged
for frustrated homicide, but was acquitted.
He stated that Analyn was his neighbor but denied taking or molesting
her. On April 4, 1996, at about 3 to 4
P.M., he said that he saw the Baldon family passing by while he was drinking
along with two other companions. They
started drinking at about 10:00 A.M. and they drank about 4 cases of beer and
ended at about 7:00 P.M. the same day.
Then he went home. He stated
that at about 4:00 P.M. he left the group for awhile to get the salary of some
workers and he then paid them. He later
rejoined the group drinking. He went
home alone and slept at about 8:30 P.M.. He woke up at about 6:00 A.M. the
following day. He claims that the last
time he saw the victim was at the time he saw her with her family on April 4.
On cross-examination, he denied
that he offered to buy barbecue for Analyn.
He denied that he knew witness Elmer Reyes before the incident but
disclosed that he did hear he was a cousin of the Baldons. Appellant said that Reyes mauled him at the
police station in Coastal, Parañaque.
He said he knew no reason why Baldon or Reyes would implicate him in
this case. He knew no one who could
corroborate his alibi.[15]
On September 12, 1996, the trial
court rendered its decision, finding appellant guilty as charged and sentencing
him to suffer the penalty of death. The
decretal portion of the decision reads:
WHEREFORE, premises considered, finding accused Carlito Oliva y Salazar GUILTY beyond reasonable doubt for the crime of kidnapping with Rape as defined and penalized under Art. 267 and Art. 335 of the Revised Penal Code as amended by Sections 8 and 11 of RA 7659, this Court hereby sentences him to the penalty of DEATH and to suffer the accessory penalties provided by law specifically Art. 40 of the Revised Penal Code. For the civil liability he is hereby further condemned to indemnify the victim the amount of P50,000.00 in line with existing jurisprudence, P50,000.00 as moral damages and P50,000.00 as exemplary damages.
The Clerk of Court, Atty. Clemente Boloy is directed to prepare the Mittimus for the immediate transfer of accused Carlito Oliva from the Parañaque Municipal Jail to the Bureau of Corrections in Muntinlupa City and finally to forward all the records of this case to the Supreme Court for automatic review in accordance with Section 9, Rule 122 of the Rules of Court and Article 47 of the Revised Penal Code as amended by Section 22 of Republic Act No.7659.
SO ORDERED.[16]
In his brief, appellant assigns
the following as lone error of the trial court:
THE TRIAL COURT ERRED
IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF KIDNAPPING WITH RAPE AS WELL AS
IN NOT ACQUITTING ACCUSED-APPELLANT ON GROUND OF REASONABLE DOUBT.[17]
Before us, the lone issue for
resolution is whether appellant's guilt has not been proven beyond reasonable
doubt.[18] But we must also inquire whether the penalty of death
has been properly imposed on him.
Appellant contends that: (1) The
elements of illegal detention were not supported or proved by the evidence of
the prosecution. (2) There are inconsistencies
in the testimonies of the victim. (3)
The lacerations found in Analyn's vagina could have been caused by the
insertion of a hard object. Appellant
stresses that the offended child had testified that she did not see the penis
of the appellant, and he did not bring out his penis.[19] He adds that the victim only thought that it was his
penis that caused the pain in her private organ.[20] Moreover, appellant contends that no sexual contact
was proved since Analyn did not say that he went on top of her to insert his
penis into her private part.[21]
For the State, the Solicitor
General is of the view that under the circumstances of the case, the offense
committed was not kidnapping with rape under Article 267 of the Revised Penal
Code.[22] According to the OSG, the evidence on record shows
that the crime committed is qualified rape of a minor below seven years old,
considering that the victim, Analyn Baldon, is a five and one-half (5 1/2) year
old girl. The OSG argues that the guilt
of the appellant for qualified rape has been sufficiently established by the
prosecution,[23] and that the sentence of death has been correctly
meted out on him.
Well established is the rule that,
where the culpability or innocence of an accused hinges on the issue of
credibility of witnesses and the veracity of their testimony, findings of the
trial court are given the highest respect.
For it is the trial judge who has the advantage of personally observing
the conduct and demeanor of declarants, an opportunity not available to an appellate
court.[24]
After reviewing the records of
this case, we find credible Analyn's testimony in court. The trial court observed that initially,
Analyn could not utter a word when she was placed on the witness stand. The Department of Social Welfare and Development
was even given added time for therapy to stabilize her condition.[25] When she was ready to testify, she did so in a
straightforward manner. She said she
knew appellant and pointed to him as the person who took her to a grassy area,
removed her panty, and inserted his penis into her vagina, at which time she
felt pain in her private part. When the
defense counsel on cross-examination told her if it was appellant’s finger
which was inserted into her vagina, she answered she was sure that it was appellant's
penis that was inserted.[26] In this instance, young as Analyn was, we find her
version of the incident believable. The
testimony of a rape victim of tender age deserves full credit, especially where
the facts point to her having been a victim of sexual assault.[27]
Analyn' s testimony did
occasionally reflect inconsistencies. During re-direct, she stated that she was
sure it was appellant's penis that penetrated her although she admits not
actually seeing the penis itself.[28] This minor variance, however, is in our view,
insignificant and does not weaken her testimony that she was raped by
appellant. Error-free testimony cannot be expected, most especially when a
witness is recounting details of a harrowing experience, one which even an
adult would like to bury in oblivion.[29] Even if her testimony is not impeccable, the minor
inconsistencies therein serve to reinforce rather than weaken her
credibility. They are but minor lapses
of a 5-year old child, who was traumatized by the bestial act done on her innocent
person by appellant.[30]
As earlier observed, the victim's
testimony shows plainly that there was actual carnal knowledge. In unmistakable terms, she testified on
direct examination to the fact of actual penetration as follows:
Atty. Ambrosio:
Q: Natatandaan mo ba kung saan ka sinamahan ni Inggo?
A: Sa damuhan.
Q: Noong makarating na kayo sa damuhan, ano ang ginawa ni Inggo sa iyo?
A: Pinasok ang titi niya.
Q: Saan pinasok ni Inggo ang titi niya?
A: Sa pipi ko.
Q: Ano pa ang ginawa ni Inggo sa iyo noong ipasok niya ang titi niya sa pipi mo?
A: Hinalikan niya ako.
Q: Saan ka hinalikan ni Inggo?
A: Sa bibig.
Q: May suot ka bang damit noon?
A: Opo.
Q: May suot ka bang panty noon?
A: Wala po.
Q: Sino and naghubad ng panty mo?
(WITNESS POINTED TO THE ACCUSED CARLITO OLIVA)[31]
Neither can we brush aside the
findings of Dr. Bernales that there were lacerations present in Analyn' s
vagina. When the testimony of a rape
victim is consistent with the medical findings, sufficient basis exists to
warrant a conclusion that the essential requisite of carnal knowledge has
thereby been established.[32]
Significantly, the prosecution has
adequately established the allegation in the information that Analyn was only 5
1/2 years old at the time of her rape.
She was born on November 5, 1990 as evidenced by her Certificate of Live
Birth.[33] It must be stressed that in cases of statutory rape,
as in this case where the age of the victim was established with certainty to
be below seven years as shown by her birth certificate and testimonial
evidence, force is not an essential element since the absence of free consent
is presumed when the woman is below such age.[34] Therefore, to convict appellant in the case at bar,
the only circumstance that needs to be proved is the fact of intercourse which
was sufficiently substantiated by the prosecution.[35]
Nonetheless, although we affirm
the findings of the trial court as to appellant's guilt of the crime of
statutory rape, the trial court, in our view, erred in its finding that
kidnapping attended the commission of the crime of rape.
In the present case, we are left
only with the following proven facts that pertain to the kidnapping of Analyn:
that the victim's mother learned from one Elmer Reyes that he saw the victim in
the company of appellant; that Reyes saw the victim along with the appellant on
the day the rape occurred; that per victim's testimony, appellant brought the
victim to a grassy area where he raped her; that after the rape, appellant
brought the child to his house where they slept; and, that the following
morning, appellant brought the victim to her "Ate Eva".
Under Article 267 of the Revised
Penal Code, as amended by R.A. 7659, kidnapping or serious illegal detention is
committed when the following elements of the crime are present: (1) that the
offender is a private individual; (2) that he kidnaps or detains another, or in
any manner deprives the latter of his liberty; (3) that the act of detention or
kidnapping must be illegal; and (4) in the commission of the offense, any of
the following circumstances is present: (a) that the kidnapping or detention
lasts for more than 5 days; or (b) that it is committed simulating public
authority; or (c) that any serious physical injuries are inflicted upon the
person kidnapped or detained or threats to kill him are made; or (d) that
the person kidnapped or detained is a minor, female, or a public officer.[36]
The primary element of the crime
of kidnapping is actual confinement, detention and restraint of the victim.[37] A review of the prosecution's own narration of events
shows that the prosecution did not establish actual confinement, detention or
restraint of the child, which is the primary element of kidnapping. The victim's and Reyes' testimonies do not
adequately prove that the victim was forcefully transported, locked up or
restrained.[38] The mother's testimony - based on what Elmer Reyes
said - was obviously hearsay and could not establish what appellant's intent
was. Absent any indubitable proof of a
purposeful or knowing action by the accused to forcibly restrain the victim,
there can be no taking coupled with intent to complete the commission of the
offense.[39]
Under Article 335 of the Revised
Penal Code, as amended by R.A. No. 7659,[40] the death penalty shall also be imposed if the crime
of rape is committed where the victim is a child below seven (7) years
old. Here, Analyn Baldon was five years
old when she was sexually molested.
We find modification on the civil
liability of appellant in order too.
The civil indemnity is increased to P75,000.00 since the rape is
qualified by the circumstance of age which makes the death penalty imposable.[41] The award of moral damages in the amount of P50,000.00
is justified without need of any proof of Analyn Baldon's physical
suffering. However, only the amount of P25,000.00
is in order as exemplary damages.
Four justices of the Court,
however, have continued to maintain the unconstitutionality of Republic Act
No.7659 insofar as it prescribes the death penalty. Nevertheless, they submit to the ruling of the majority to the
effect that the law is constitutional and that the death penalty can be
lawfully imposed in the case at bar.
WHEREFORE, the appealed judgment finding Carlito Oliva guilty of
the crime of statutory rape and sentencing him to suffer the penalty of DEATH
together with all the accessory penalties is AFFIRMED, with the
MODIFICATIONS that the civil indemnity to be paid to the offended party
is increased to P75,000.00, together with P50,000.00 as moral
damages and P25,000.00 as exemplary damages.
In accordance with Section 25 of
Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon the
finality of the decision, let the records of this case be forthwith forwarded
to the Office of the President for possible exercise of the pardoning power.
SO ORDERED.
Davide, Jr., C.J., Bellosillo,
Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena,
Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.
Vitug, J., on official leave.
[1] Rollo, pp.
15-27.
[2] Original Records, p.
1.
[3] Id. at 176.
[4] TSN, June 17, 1996,
pp. 4-6; TSN, August 7, 1996, pp. 5-7.
[5] Id. at 7-8; Id.
at 8-9.
[6] Id. at 9-10; Ibid.
[7] TSN, June 17, 1996,
pp. 10-12.
[8] Exhibit C, Original Records,
p. 178; TSN, June 17, 1996, pp. 14-16.
[9] Exhibit D, Original
Records, p. 179; TSN, June 27, 1996, pp. 2-6.
[10] Original Records, p.
179.
[11] TSN, August 6, 1996,
pp. 4-16.
[12] Exhibit B, Original
Records, p. 177.
[13] TSN, June 17, 1996,
p. 13; TSN, August 7, 1996, pp. 10-14.
[14] TSN, August 12,
1996, pp. 14-17.
[15] TSN, August 14,
1996, pp. 2-23.
[16] Rollo, p. 27.
[17] Id. at 51.
[18] Id. at 60-64.
[19] TSN, August 12,
1996, p. 20.
[20] Rollo, p. 62.
[21] Id. at 62-63.
[22] ART.
267. Kidnapping and serious illegal
detention.-Any private individual who shall kidnap or detain another, or in
any other manner deprive him of his liberty, shall suffer the penalty of
reclusion perpetua to death:
1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer.
The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense.
When the victim is killed or dies as a consequence of the
detention or is raped, or is subjected to torture or dehumanizing acts, the
maximum penalty shall be imposed. (As
amended by R.A. 7659)
[23] Rollo, p.
104.
[24] People vs.
Deleverio, G.R. Nos. 118937-38, 289 SCRA 547, 563 (1998).
[25] Rollo, p. 25.
[26] TSN, August 12,
1996, pp. 14-20.
[27] People vs.
Pagdayawon, G.R. No. 130522, February 15, 2001, pp. 8-9.
[28] TSN, August 12,
1996, p. 20.
[29] People vs. Tumala,
Jr., G.R. No. 122100, 284 SCRA 436, 442 (1998).
[30] People v.
Osing, G.R. No. 138959, January 16, 2001, p. 4.
[31] TSN, August 12,
1996, p. 15.
[32] People vs.
Ybañez, G.R. No. 136257, February 14, 2001, p. 6; People vs. Tabion,
G.R. No. 132715, 317 SCRA 126 (1999).
[33] Exhibit A, Original
Records, p. 176.
[34] People vs.
Manalo, G.R. Nos. 135964-71, February 21, 2001, p. 11.
[35] People vs.
Osing, supra.
[36] People vs.
Paloma, G.R. No. 116595, 279 SCRA 352, 357-358 (1997), citing People v.
Mercado, L-65152, 131 SCRA 501 (1984).
[37] People vs.
Astorga, G.R. No. 110097, 283 SCRA 420, 439 (1997).
[38] People vs.
Ubongen, G.R. No. 126024, April 20, 2001, p. 7; citing People vs.
Astorga, G.R. No. 110097, 283 SCRA 420 (1997); People vs. Godoy, G.R.
Nos. 115908-09, 250 SCRA 676, 728 (1995); People v. Soberano, G.R. NO.
116234, 281 SCRA 438, 447 (1997); People vs. Cua, G.R. No. 82292, 232
SCRA 507, 516 (1994).
[39] People vs.
Ubongen, supra.
[40] ARTICLE
335. When and how rape is committed. –
Rape is committed by having carnal knowledge of a woman under any of the
following circumstances:
xxx
3. When the woman is under twelve years of age.
xxx
“The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:
xxx
“4. When the victim is a religious or child below seven (7) years old.
xxx
[41] People vs.
Victor, G.R. No. 127903, 292 SCRA 186, 200-201 (1998).