People vs Gilbero : 142005 : January 23, 2002 : J. Kapunan : First Division

FIRST DIVISION

[G.R. No. 142005. January 23, 2002]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ATILANO GILBERO, accused-appellant.

D E C I S I O N

KAPUNAN, J.:

The victim, Ana Maria Martelino, twenty-one (21) years old is a mental retardate, with a mentality of a six (6) year and six (6) month old girl. For having carnal knowledge of her, the accused-appellant was charged and found guilty of the crime of rape by the Regional Trial Court, 4^th Judicial Region, Branch 37, Calamba, Laguna. The dispositive portion of the judgment reads as follows:

"WHEREFORE, premises considered and finding the accused ATILANO GILBERO, JR. a.k.a."JUNIOR KULANGOT" GUILTY beyond reasonable doubt of the crime of RAPE as defined and penalized under Art. 335, par. 3 of the Revised Penal Code, he is sentenced to suffer the penalty of Reclusion Perpetua, to suffer all the accessory penalties provided by law, and to pay the costs of suit. He is likewise ordered to indemnify the victim, Ana Maria Martelino in the amount of Php50,000.00, and to pay Php50,000.00 as moral damages.

The preventive imprisonment undergone by the accused shall be credited in his favor.

SO ORDERED.[1]

The Information under which the accused-appellant was charged with rape reads as follows:

That in the early morning of April 28, 1995, at around five o’clock in the morning, in Calamba, Laguna, Philippines and within the jurisdiction of this Honorable Court, accused ATILANO GILBERO @ “Junior Kulangot”, actuated by lust, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge of ANA MARIA MARTELINO, a retardate with a mental age of six years and six months old, against her will and consent, to her damage and prejudice.

CONTRARY TO LAW.[2]

Upon arraignment on October 18, 1995, the accused-appellant pleaded “not guilty” to the offense charged. Pre-trial conference was waived by the accused-appellant; thus, trial ensued.[3]

The facts are as follows:

On April 24, 1995, at around 3:00 o’clock in the afternoon, the private complainant Ana Maria Martelino (Ana, for brevity), a mental retardate rode the calesa parked along Rizal Avenue and driven by herein accused-appellant, Atilano Gilbero. She asked the accused-appellant to bring her to the house of Rommel Daes (a classmate in special education) at Kalignayan St., Banaue, Quezon City. Ana showed accused-appellant a piece of paper on which the address of Rommel was written so he would know where to bring her. Upon seeing Ana, Rommel’s father who knew Ana to be a retardate asked the accused-appellant to bring her home. Accused-appellant, however, did not take Ana home but instead brought her to the house of his cousin, Romeo Gilbero in Palay St., Balic-Balic, Manila. On April 27, 1995, accused-appellant took Ana to the house of his mother in Barangay Lingga, Calamba, Laguna, introducing her to be his wife. Accused-appellant left Ana for awhile in his mother’s house and came back for her again that afternoon. They then proceeded to his cousin's house in San Jose, Calamba, Laguna. It was here where Ana was sexually molested. Before being raped, the victim was made to drink “gin” with coke which caused her to feel dizzy and vomit. She was again raped by another man whom she did not know but was certain that he was a friend of the accused-appellant.

Meanwhile, Ana’s mother, Marita Sarmiento Martelino initiated a search for her when the girl failed to come home on April 24, 1995. Mr. Daes, the father of Rommel, called her up to inform her that Ana came to his house in a caretela. They tried to re-trace Ana’s steps from Kalignayan St. to their house but the search was futile. Ana’s mother announced her disappearance through the television show, ‘Hoy Gising.’ Responding to the announcement, a certain Minda Gilbero, called up Mr. Daes and informed him that Ana who was reported missing slept in their house that evening. On April 26, 1995, Ana’s family immediately rushed to the house of Minda Gilbero at No. 785 Palay St., Balic-Balic, Manila, where it was confirmed that Ana and the accused-appellant ate and slept in this house the previous nights. They all waited and hoped that the accused-appellant and Ana would return that evening in Balic-Balic, Manila but they did not appear.

On April 27, 1995, Ana’s family sought assistance from the NBI to locate her whereabouts in Calamba, Laguna. On April 28, 1995, Ana’s mother and NBI agents with the help of barangay officials, found Ana in Barrio San Juan, Laguna in the company of accused-appellant. Whereupon, the accused-appellant was brought to the NBI Office in Manila for questioning.[4]

At the NBI, Ana submitted herself for medical examination. Dr. Aurea Villena, medico-legal officer of the NBI conducted the examination and thereafter prepared a Medico-Legal Certificate,[5] showing her findings, to wit:

GENERAL PHYSICAL EXAMINATION:

Height: 151.0 cm Weight 124 lbs.

Fairly developed, conscious, ambulatory subject.

Breast, developed, hemispherical, doughy. Areolae, light brown, 6.3 cm in diameter. Nipples, light brown, protruding, 1.2 cm. in diameter.

PHYSICAL INJURIES: Linear abrasions; reddish brown: 3 in number, 3.0 cm., 10.2 cm., 6.0 cm., posterior aspect, left upper arm. Contusions, purplish: multiple, 5.0 cm. x 5.5 cm. posterior aspect, left upper arm.

GENITAL EXAMINATION: Pubic hair, fully grown, abundant. Labia majora and minora, coaptated. Fourchette, moderately lax. Vestibulae mucosa, pinkish. Hymen, moderately tall, moderately thick, intact, distensible. Hymenal orifice admits a tube 2.5 cm. in diameter. Vaginal walls, tight. Rugosities, prominent.

CONCLUSIONS:

1. No evident sign of extragenital physical injuries noted on body of the subject at the time of examination.[6]

2. Hymen, intact but distensible and its orifice wide (2.5 cm. in diameter) as to allow complete penetration by an average-sized adult Filipino male organ in full erection without producing any genital injury.

3. Positive semenology is highly indicative of recent sexual intercourse with man.

On the same day, the victim was also referred to the Neuro-Psychiatric Service in the NBI for Neuro-Psychiatric Evaluation. Dr. Erlinda Marfil submitted her findings,[7] to wit:

Physical and Neurological Examination:

Physical and neurological examination are within normal limit.

Psychological Examination:

Psychological test reveals MENTAL RETARDATION AND PSYCHOSIS. Level of intellectual functioning with a MENTAL AGE of (6) six years and (6) six months and an I.Q. of 40.

DIAGNOSIS: (1) Mental retardation with Psychosis

(2) Epilepsy

On May 3, 1995, Ana Maria Martelino executed a sworn statement[8] before Special Investigators III Syrus Aluzan and Nelson Moreno, narrating in detail what the accused-appellant did to her on April 28, 1995 in the house of the accused-appellant’s relative.

The accused-appellant, on the other hand, denied having raped nor having asked anybody to rape Ana.[9] He claimed that on April 28, 1995, he went to the house of his uncle in San Jose, Laguna and slept there alone as Ana was left behind in his mother’s house in Lingga, Calamba, Laguna.[10] He claimed that he did not notice Ana to be abnormal.

In this appeal, the accused-appellant raises the lone assignment of error that:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF RAPE DESPITE THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.[11]

We deny the appeal.

Accused-appellant avers that in crimes against chastity where usually only two persons are involved, the testimony of the offended party should not be received with precipitate credulity for the charge can easily be concocted. The testimony of the victim must be scrutinized with extreme caution and must survive the exacting standard of credibility. In the instant case, the private complainant was found to be a mental retardate and worse, insane. Her perception of what is right or wrong may not be that accurate nor can she be expected to tell the whole truth about the incident. This was quite evident in her testimony in court where she was allegedly inconsistent and was narrating irrelevant, immaterial and impertinent matters. Since her credibility as a witness is questionable, her testimony in court must, therefore, not be admitted.[12]

The contention is untenable.

While it is true that the victim’s mental state is not normal, such handicap does not automatically render the victim disqualified from testifying about the facts she knew as long as she was capable of perceiving and making her perception known to others.[13] A mental retardate is not, by reason of such handicap alone, disqualified from being a witness.[14]

As a general rule, when a witness takes the stand to testify, the law, on grounds of public policy, presumes that he is competent unless shown to be otherwise.[15] In the instant case, the defense did not present evidence showing that the victim was incompetent at the time she was presented as a witness. The accused-appellant did not pose any objection when the victim was offered as a witness. In fact, the counsel for the accused-appellant even had the opportunity to cross-examine the victim.

The victim was consistent and firm in her answers on direct and cross-examination. Except for minor details as to the time and place of the commission of rape, the alleged inconsistencies in her testimony are not enough to impair her credibility. To every question asked, the victim gave straightforward and forthright answers which to the mind of the trial court was credible and worthy of belief. Considering that the trial court was in a better position to observe the demeanor of the witness during the trial,[16] we, therefore, do not find any error on the part of the trial court in admitting the testimony of the victim.

On the witness stand, the victim positively identified the accused-appellant as the man who raped her on April 28, 1995. On direct examination, the victim testified:

State Prosecutor Barrios:

Q. Now do you know the accused Atilano Gilbero?

WITNESS

A. Yes, sir.

Q. What do you call him?

A. Lani Gilbero, sir.

Q. And who is this Jr. Kulangot that you are referring to in your statement?

A. The rig driver, sir.

Q. This Lani Gilbero and Jr. Kulangot is the same Atilano Gilbero, the accused in this case?

A. Yes sir, they are one and the same person, sir.

Q. Can you identify him?

A. Yes, sir.

Q. Can you point to him?

A. Yes, sir.[17]

The victim was able to narrate in detail in the affidavit she executed on May 3, 1995 what the accused-appellant did to her which was affirmed on direct examination:

In her sworn statement, the questions and answers went as follows:

23 T: Kailan ka huling ni-rape ni Junior Kulangot?

S: Noong Biyernes po ng umaga ika-28 ng Abril 1995.

24. T: Saan?

S: Doon po sa bahay ng kanyang kamag-anak sa Calamba, Laguna.

25. T: Papaano ka ni-rape ni Junior Kulangot sa huling pagkakataon?

S: Bandang alas singko (5:00 A.M.) ng madaling araw, nakahiga pa po ako noon, tinanggal ni JUNIOR KULANGOT ang duster, bra at panty ko. Hinalikan niya (JUNIOR KULANGOT) ako sa labi, pisngi at suso. Nakahubad siya noong mga oras iyon, pumatong siya sa akin at ipinasok niya ang kanyang ari sa ari ko.[18]

On the witness stand, she affirmed, to wit:

State Prosecutor Barrios

Q. On page 2 of the sworn Statement, may I quote the question and answer No. 13, "tanong: Papaano kang ni-rape ni Jr. Kulangot?

Sagot: Tinanggal ni Jr. Kulangot ang aking damit, bra, pantalon, at panty at naghubad din siya ng pantalon at "brief", hinalikan niya ako sa lips, mukha, leeg, suso at ari. Pagkatapos ipinasok ni Jr. Kulangot and kanyang ari sa ari ko. Makalipas ang isang oras ni-rape ulit ako ni Jr, Kulangot."

Is this true or not?

Witness:

A. True, sir.[19]

With the foregoing positive declarations, there is no doubt that it was the accused-appellant who sexually molested Ana. The accused-appellant, however, vehemently denies such charge, claiming further that the victim could not have been raped considering that her hymen was found to be intact or not lacerated.

We are not persuaded.

The accused-appellant’s claim is belied by the findings of Dr. Aurea Villena to the effect that semen was found in the vagina of the victim during the genital examination conducted on her on April 28, 1996, indicating that a man did have sexual intercourse with Ana. Dr. Aurea Villena has sufficiently explained that the victim's hymen being found intact or not lacerated is not an indication that there was no rape, as the hymen of the victim was in her words “thick and distensible.” On direct examination, she declared, thus:

Q. What do you mean by "Hymen is moderately thick and distensible?"

A. Distensible means this type of hymen is elastic type, any elongated and hard object which can go inside without causing any hymenal laceration and being elastic it can expand and accommodate the things that is being inserted.

xxx

ATTY. DELOS SANTOS:

Q. Could you also say that if it is a penis of a man that will be inserted in a thick but distensible vagina, it may or may not cause any laceration?

A. Yes, sir.

xxx[20]

This Court has made judicial pronouncements that a rupture of the hymen is not essential nor is it an element of rape.[21] The absence of hymenal lacerations, however, is also not an indicia that rape has not been committed. The mere introduction of the male organ in the labia majora of the victim’s genitalia consummates the crime.[22] With the positive identification of the accused-appellant by the victim herself, coupled with the declaration of the victim that the accused-appellant made her drink gin with coca-cola, made her smoke a cigarette, removed her panty and bra, kissed her on different parts of her body, and inserted his sex organ in her vagina,[23] and the findings by the doctor of the presence of human spermatozoa in the vagina of the victim, all these circumstances lead us to the ineluctable conclusion that Ana has been raped.

On the other hand, the accused-appellant could only proffer denials to the charges lodged against him. As against the victim’s positive and categorical testimony, accused-appellant’s mere denials can not, certainly, prevail. Denial, like alibi, is inherently a weak defense and can not stand against the positive and credible testimony of the prosecution witnesses that the accused-appellant committed the crime.[24] His claim that he did not sleep with Ana on the night of April 27, 1995 or was with her until five o'clock in the morning of April 28, 1995 was belied by his mother, Trifonia Gilbero. The latter testified that while accused-appellant had left for San Juan in the afternoon of April 27, 1995, he, however, had returned to her house at around 5:00 o’clock in the afternoon of the same day. Then, accused-appellant left with Ana for San Juan, Laguna to go to his cousin's house. She didn’t know where Ana slept that evening of April 27, 1995. The next time she saw her son was when the latter was apprehended by the NBI on April 28, 1995.[25] Unfortunately, the testimony of accused-appellant’s mother did not at all extricate him from the morass he was in.

We also agree with the trial court’s observation that it was quite inconceivable for the accused-appellant not to have noticed that Ana was mentally abnormal. Luzviminda Gilbero, accused-appellant’s cousin, testified that on April 24, 1995, the accused-appellant and the victim went to their house at No. 785 Palay St., Sampaloc, Manila, ate and slept there,[26] and stayed there for two nights.[27] Accused-appellant introduced Ana to her as his wife.[28] Luzviminda Gilbero had noticed Ana to be “somewhat abnormal" as she was talkative and bragging that she had plenty of dollars.[29] xxx “If the wife of his cousin, Luzviminda Gilbero, NBI psychiatrist Dra. Marfil, and NBI medico-legal officer Dra. Villena had become aware of Ana’s abnormality by the way she talked and by her strange behavior shortly after meeting her, there is no reason why Atilano who was with Ana, from April 24 to April 28, 1995 could not have noticed it. This strange behavior of Ana was very apparent and could not escape being noticed even during Ana’s testimony in court.”[30] Undoubtedly, the accused-appellant took advantage of Ana’s mental state to carry out his lewd designs.

WHEREFORE, in view of the foregoing, the decision of the trial court dated October 20, 1999 is AFFIRMED in toto.

SO ORDERED.

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