Republic of the Philippines

Supreme Court

Manila

EN BANC

PEOPLE OF THE PHILIPPINES,	G.R. No. 167383
Plaintiff-Appellee,
	Present:
	PUNO, C.J.,
	QUISUMBING,
	YNARES-SANTIAGO,
	SANDOVAL-GUTIERREZ,
	CARPIO,
	AUSTRIA-MARTINEZ,
	CORONA,
- versus -	CARPIO MORALES,
	AZCUNA,
	TINGA,
	CHICO-NAZARIO,
	VELASCO, Jr.,
	NACHURA,
	REYES,
	DE CASTRO, and
	BRION, JJ.
Amadeo Tinsay,	Promulgated:
Accused-Appellant.	September 22, 2008

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

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before the Court for review is the Decision[1] of the Court of Appeals (CA) promulgated on February 9, 2005, the dispositive portion of which reads as follows:

WHEREFORE, premises considered, the assailed Decision dated 28 March 2003, promulgated on 03 April 2003, of the Regional Trial Court of Malolos, Bulacan, Branch 13 in Crim. Case No. 1266-M-00 convicting appellant AMADEO TINSAY of qualified rape penalized under Article 266-A, in relation to Article 266-B of the Revised Penal Code, as amended by R.A. No. 8353 and sentencing him to suffer the capital penalty of DEATH is AFFIRMED, with the MODIFICATION that appellant is ordered to pay the victim AAA[2] the amounts of Php75,000.00 for civil indemnity, Php75,000.00 for moral damages and Php25,000.00 for exemplary damages.

In accordance with Section 13, Rule 124 of the Amended Rules to Govern Review of Death Penalty Cases (A.M. No. 00-5-03-SC, effective 15 October 2004, this case is CERTIFIED to the Supreme Court for review.

Let the entire record of this case be elevated to the Supreme Court.

SO ORDERED.[3]

A thorough examination of the records reveals that the CA's narration of facts[4] is accurate, and thus, reproduced hereunder.

The appellant was charged before the Regional Trial Court, Third Judicial Region, Malolos, Bulacan, in Criminal Case No. 1266-M-2000 with the crime of rape, in an Information dated 17 April 2000 which reads:

The undersigned Asst. Provincial Prosecutor accuses Amadeo Tinsay of the crime of rape, penalized under the provisions of Art. 266-A in relation to Art. 266-B of the Revised Penal Code, as amended by R.A. 8353, committed as follows:

That on or about the 22^nd day of January 2000, in the municipality of Malolos, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being the father of the offended party AAA, an 11-year-old-minor, did then and there willfully, unlawfully and feloniously, with lewd designs, have carnal knowledge of said AAA against her will and without her consent.

Contrary to law.

x x x x (Emphasis supplied)

During the arraignment and pre-trial of the case conducted on 05 April 2001, the appellant, assisted by the designated counsel de oficio, Atty. Nicasio Perona, pleaded not guilty to the offense charged.

Trial on the merits ensued.

The prosecution presented three (3) witnesses, namely, BBB, wife of the appellant and mother of the victim; Dr. Ivan Richard A. Viray, Medico-Legal Officer of the Philippine National Police (PNP) Regional Crime Laboratory, Malolos, Bulacan and the victim herself AAA.

The defense presented two witnesses, namely, the appellant himself and Captain Ralph Apilado, appellant’s flight instructor at the Omni Aviation in Clark Field, Pampanga.

The prosecution presented BBB as its first witness. She testified that she married the appellant on 23 October 1985, offering in evidence the certified true copy of their Marriage Contract issued by the Office of the Civil Registrar General. She and the appellant have three (3) children and the victim is their second child who was born on 25 September 1988. She presented the certified true copy of the victim's Certificate of Live Birth issued by the Office of the Civil Registrar-General. She testified that the name Amadeo Roxas Tinsay appearing on the Certificate of Live Birth as the father of the victim is the accused in this case. She also identified the appellant in court.[5]

BBB recalled that on 22 January 2000 she arrived at their house in Malolos coming from her office in Kaunlaran Credit Cooperative in Atlag, Malolos, Bulacan and saw the appellant and the victim went out of their bedroom together. The victim did not immediately tell her what happened. She later learned that the victim was raped by the appellant when the victim's teacher, Mrs. Concepcion Morales, asked her to go to school and there, her daughter told her what happened on 22 January 2000. The victim did not tell her everything that happened but only the words, “Kung ano ang ginagawa sa iyo ng Papa, ginagawa niya sa akin.” She talked to the appellant in her office and the latter told her that he did it and that he was sorry and asked for her forgiveness. She did not report it immediately to the police. But on 10 February 2000, after thinking it over, she went to the police station to find out the truth of what happened to her daughter.[6]

She and her daughter went to a doctor for her daughter’s medical examination. She stated that the result of the medical examination showed that her daughter was raped. Because of the incident, she incurred expenses for transferring to another residence and in going to and from the Department of Social Welfare and Development in the amount of Php30,000.00. She also resigned from her work as a result of the incident. She cried in the witness stand and testified that what happened was very painful to her as a mother; that she did not expect it to happen; that she is the family bread winner as her husband has no job and yet he did it. She cannot sleep and work because of what happened; her daughter could not sleep and always cried and her two other children do not want to get out of the house as they were ashamed; and that her husband did it to her daughter in their bedroom in the house in Balite, Malolos, Bulacan where she and her husband sleep.[7]

The prosecution's second witness was Dr. Ivan Richard Viray, the medico-legal officer of the PNP Regional Crime Laboratory Office in Malolos, Bulacan who conducted the examination on the victim. x x x He reduced his examination in writing with the conclusion: “Subject is in non-virgin state physically. There are no external signs of application of any form of trauma.” He arrived at the conclusion that the victim is in “non-virgin state” based on his findings that: “Hymen: Elastic Fleshy type with the presence of deep healed laceration at 6 & 9 o'clock positions.” He explained that deep healed laceration means that the laceration in the hymen is more than a week old; that if the lacerations were less than a week, it would still be fresh or in healing process; that the alleged time and date of the commission of the offense which is, 22 January 2000 at about 11:00 a.m. is compatible with the findings of his physical examination conducted on the victim. He explained that the possible cause of laceration in the hymen of the victim is the insertion of a hard object which may be an erect penis or a bottle or any other hard object.[8]

The prosecution's third witness is the victim herself AAA. She testified that she was born on 25 September 1988 as shown in her Certificate of Live Birth that was previously marked as Exhibit “A”. Her mother is BBB and her father is Amadeo Tinsay whom she identified as the accused in the case and positively identified in open court.[9]

The victim testified that on 22 January 2000 she was residing in Balite, Malolos, Bulacan and stayed in the house with her father, mother and brothers; that on 22 January 2000, at about 11:00 and 12:00 noon, she was molested by her father, referring to the appellant which happened in the bedroom of her mother and father. At that time, the appellant was carrying a bag and told her that it was given to him by her mother's friend and was intended to be given to her. The appellant removed her shorts, after that her panty and afterwards, her father inserted his penis inside her vagina. The appellant was holding his penis and he would point it to her vagina and insert it to her vagina. When the appellant inserted his penis to her vagina, she was lying face upward on the bed in the room and the appellant was laying face down inserting his penis to her vagina. She was hurt when the appellant was inserting his penis to her vagina and she was trying to move backward but the appellant was pulling her legs. The appellant told her that it would only take a while. She told the appellant to stop because she did not want anymore after which the appellant stopped and the latter put on her shorts and her panty. The appellant was wearing maong shorts and sando at that time. The appellant removed first his sando then, he removed his shorts and then, his brief. After the appellant put on to [sic] her panty and shorts, she returned to her room. She then, told her cousin, CCC, what happened to her. She also recalled having examined by the PNP Crime Laboratory and having executed a sworn statement before the police which she identified before the trial court. In par. 7 of her sworn statement, she stated that her answer to the question, “Pumasok ba ang ari niya sa ari mo?” was “Hindi po” because she said, “Kasi di eksaktong pasok sa ari ko” and “Di naman pasok na pasok yong ari niya sa ari ko.” She stated that she felt pain at that time even though she said, “di naman pasok na pasok,” because she said “kasi po pinipilit ipasok pero ayaw ko.” When asked how deep the appellant entered his penis to her vagina, she demonstrated with her two fingers a length of about 2 inches. Then, she said she felt “medyo nalungkot po” because of what happened because she still loved her father at that time.[10]

During her cross-examination, the victim testified that between the hours of 11:00 and 12:00 noon on 22 January 2000, she was at home in their living room; that the appellant and her lola were also at home; that her lola was in the terrace; and that at around 12:30 p.m. on 22 January 2000, she was watching television. On re-direct examination, she testified that while watching television, she was called by appellant to come to the room while her lola was still in the sala; that in the room, she was asked by the appellant to sit beside him.[11]

x x x x

The defense presented two (2) witnesses, namely, the appellant himself and Captain Ralph Apilado.

Appellant testified that during the alleged commission of the offense, he had no job but that he was training as a student pilot in Aviation Corporation at Clark Field, Pampanga. He presented a pilot logbook showing that he attended the training from October 1999 up to February 2000. On 16 January 2000, he went to Angeles, Pampanga and stayed there up to 02 February 2000. On 22 January 2000, he was at Clark Pampanga but he was not on training and only stayed in his boarding house located at Angeles, Pampanga. In his pilot logbook, there were several entries on various dates but no entry was made on 22 January 2000. The appellant testified that no entry was made because he did not have a scheduled flight on that date. The appellant testified that the probable reason why the private complainant filed a case against him for rape was because of some family problems. These problems pertained to his being unemployed and because he told his wife that he had a girlfriend. He said he has already asked forgiveness from his wife and he was already forgiven. There was also a problem regarding his training as a student pilot because his wife did not approve of his training after she learned that he had a girlfriend and because it would entail substantial financial expenses.[12]

During his cross-examination, the appellant said that there were cut leaves in his pilot logbook because there were so many errors in it but he was not the one who cut the leaves. He also confirmed that there was no entry in the logbook pertaining to the date 22 January 2000. He also testified that Angeles City is only 45 minutes away from Balite, Malolos, Bulacan. He stated that the entries in the logbook signified that one is in the barracks and at the same time has a scheduled flight. On 22 January 2000, he was only in the barracks but he had no scheduled flight that is why there was no entry in his logbook for that date.[13]

The second defense witness was Captain Ralph Apilado who testified that he was the flight instructor of the appellant in Omni Aviation located at Clark Field, Pampanga. On 22 January 2000, he was not at the office because it was his day off and he did not see the appellant. He testified that even if the students are housed in the barracks, they are free to go if they want to and they can go home to visit their family and return again to the barracks.[14]

x x x x

On 03 April 2003, the Decision dated 28 March 2003 was promulgated by the trial court, finding the appellant guilty beyond reasonable doubt of the crime of rape punished under Article 266-A in relation to Article 266-B of the Revised Penal Code, as amended by R.A. No. 8353, and directing the accused to indemnify the victim in the amount of Php150,000.00 x x x.

The case was elevated to this Court for automatic review in view of the penalty of death imposed on appellant. However, in accordance with the ruling in People v. Mateo,[15] and the amendments made to Sections 3 and 10 of Rule 122, Section 13 of Rule 124, and Section 3 of Rule 125 of the Revised Rules on Criminal Procedure, the Court transferred this case to the CA for intermediate review.

On February 9, 2005, the CA promulgated the herein assailed Decision, affirming the RTC Decision.

The prosecution filed a Supplemental Brief alleging that the CA Decision should be affirmed subject to modification regarding the amount of moral and exemplary damages awarded to the victim by the CA.

Appellant opted not to file a supplemental brief with this Court, but in his appeal brief, he argued that his guilt was not proven beyond reasonable doubt because of inconsistencies in the testimony of AAA and her sworn statement. He contends that the award of indemnity in the amount of P150,000.00 was improper.

The appeal has no merit.

As is the case in most rape proceedings, the crux of the matter revolves around the credibility of the victim and her testimony.[16] The trial court found the victim's testimony to be “simple, free from any material inconsistency and clear, thus, bearing the stamp of absolute truth and candor.”[17] The CA found no reason to disturb such ruling on the credibility of AAA and her testimony.

After a thorough scrutiny of the records, this Court likewise found no ground to deviate from the rule that the findings of a trial court, when affirmed by the Court of Appeals are accorded great weight and therefore the same should be deemed conclusive and binding on this Court.[18]

Appellant harps on the fact that in AAA's sworn statement,[19] when asked if appellant's penis entered her vagina, she answered “Hindi po,” but when she testified in court, she stated that appellant inserted his penis into her vagina. The supposed inconsistencies between AAA's testimony and her sworn statement are more apparent than real.

Her testimony regarding said matter is as follows:

Q - You said your father was able to insert his penis to your vagina at that incident?

A - Yes, sir.

Q - I have noticed in this paragraph 7, “Q - Pumasok ba ang ari niya sa ari mo. A - Hindi po.” Can you tell to the Honorable Court why did you say in this sworn statement he was not able to insert his penis?

A - “Kasi di eksaktong pasok sa ari ko”, sir.

Q - That is why you said that “hindi po pumasok”?

A - Yes, sir.

Q - Ms. Witness, why did you say that it was not “eksaktong pumasok”?

A - “Di naman pasok na pasok yong ari niya sa ari ko”, sir.

Q - Why did you say that you feel pain at that time, considering that when you say “di naman pasok na pasok”?

A - “Kasi po pinipilit ipasok pero ayaw ko”, sir.

Q - You have felt his penis?

A - Yes, sir.

Q - When you said “di po eksakto nakapasok”, you mean a little enter [sic] into your vagina?

x x x x

Q - Can you tell the Honorable Court how much or percentage of the accused enter his penis to your vagina? Or how deep the accused enter his penis to your vagina?

A - (witness demonstrating with her two fingers a length of about 2 inches)

x x x x[20]

In appellant's view, the foregoing testimony shows that AAA was confused as to what actually transpired. The Court strongly disagrees with appellant.

It is clear from a reading of AAA's testimony, that by answering “Hindi po” in her sworn statement, what AAA actually meant was that appellant only succeeded in inserting a 2-inch portion of his penis into her vagina since she was able to resist and stop appellant from fully inserting his penis, albeit, she already felt pain. The truth of AAA's testimony is further bolstered by the medico-legal's testimony that the victim was in non-virgin state based on his findings that AAA's hymen had deep healed lacerations at the 6 & 9 o'clock positions; and that the alleged time and date of the commission of the offense, which was January 22, 2000 at about 11:00 a.m., is compatible with the findings from the physical examination conducted on the victim.[21] Thus, the trial court was correct, as affirmed by the CA, in concluding that AAA's testimony sufficiently explained the variance in the answer given in her sworn statement and her categorical answer in court that appellant inserted his penis into her vagina.

The Court is convinced of the veracity of AAA's testimony that appellant had carnal knowledge of her. Even if only a portion of appellant's penis had entered the victim's vagina, it is settled that it is enough that the penis reaches the pudendum, or at the very least, the labia. The mere introduction of the penis into the aperture of the female organ, thereby touching the labia of the pudendum, already consummates the crime of rape.[22]

Besides, it should be borne in mind that affidavits or sworn statements are generally given less evidentiary importance than the testimony given in open court because sworn statements, which are usually taken ex parte, are almost always incomplete and inaccurate for lack of searching inquiries by the investigating officer or due to partial suggestions.[23]

Furthermore, in Maglente,[24] the Court reiterated the oft-repeated rule that the testimony of a young victim against her very own parent is accorded great weight and credence. The Court elucidated thus:

When the offended party is a young and immature girl testifying against a parent, courts are inclined to lend credence to her version of what transpired. Youth and immaturity are given full weight and credit. Incestuous rape is not an ordinary crime that can be easily invented because of its heavy psychological toll. It is unlikely that a young woman of tender years would be willing to concoct a story which would subject her to a lifetime of gossip and scandal among neighbors and friends and even condemn her father to death.

Undergoing all of the humiliating and invasive procedures for the case—the initial police interrogation, the medical examination, the formal charge, the public trial and the cross-examination—proves to be the litmus test for truth, especially when endured by a minor who gives her consistent and unwavering testimony on the details of her ordeal. (Emphasis supplied)

With AAA's testimony and the documentary evidence on record, i.e., AAA's Certificate of Live Birth,[25] the Marriage Contract of AAA's parents,[26] and the Medico-Legal Report,[27] the prosecution successfully established the existence in this case of all the elements of rape under Article 266-A in relation to Article 266-B of the Revised Penal Code, as amended by Republic Act No. 8353, which provides:

Article 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:

x x x x

d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

x x x x

Article 266-B. Penalties. –

x x x x

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;

Verily, no reversible error was committed by the trial court and the CA in ruling that appellant was guilty beyond reasonable doubt of the crime charged. At the time (2005) the CA rendered judgment, the imposition of the penalty of death was proper.

However, on June 30, 2006, Republic Act (R.A.) No. 9346, entitled An Act Prohibiting the Imposition of Death Penalty in the Philippines, took effect.[28] Pertinent provisions thereof provide as follows:

Section 1. The imposition of the penalty of death is hereby prohibited. Accordingly, Republic Act No. Eight Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act Designating Death by Lethal Injection is hereby repealed. Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A. No. 7659) otherwise known as the Death Penalty Law and all other laws, executive orders and decrees insofar as they impose the death penalty are hereby repealed or amended accordingly.

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

x x x x

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.

It has also been held in People v. Quiachon[29] that R.A. No. 9346 has retroactive effect, to wit:

The aforequoted provision of R.A. No. 9346 is applicable in this case pursuant to the principle in criminal law, favorabilia sunt amplianda adiosa restrigenda. Penal laws which are favorable to accused are given retroactive effect. This principle is embodied under Article 22 of the Revised Penal Code, which provides as follows:

Retroactive effect of penal laws. - Penal laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws, a final sentence has been pronounced and the convict is serving the same.

However, appellant is not eligible for parole because Section 3 of R.A. No. 9346 provides that “persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua by reason of the law, shall not be eligible for parole.”[30]

Hence, in accordance with the foregoing, appellant should only be sentenced to suffer reclusion perpetua without eligibility for parole.

With regard to appellant's question on the propriety of the award for civil indemnity, the CA has corrected the trial court's error by modifying the RTC decision's monetary award. The Court finds proper, for being in accord with the latest jurisprudence, the CA's award of P75,000.00 as civil indemnity, which is mandatory upon establishing the fact of rape; P75,000.00 as moral damages, even without need of proof, since it is assumed that the victim has suffered moral injuries; and P25,000.00 as exemplary damages to curb incidences of incestuous rape and to set an example for the public good.[31]

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No.

00084, promulgated on February 9, 2005, is hereby AFFIRMED with the MODIFICATION that the penalty of death imposed on appellant is REDUCED to reclusion perpetua without possibility of parole in accordance with Republic Act No. 9346.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANTONIO T. CARPIO Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

ANTONIO EDUARDO B. NACHURA Associate Justice

RUBEN T. REYES Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION

Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO

Chief Justice

---

^[1] Penned by Associate Justice Celia C. Librea-Leagogo, with Associate Justices Andres B. Reyes, Jr. and Lucas P. Bersamin, concurring, rollo, p. 4.

^[2] In line with the ruling in People v. San Antonio, G.R. No. 176633, September 5, 2007, 532 SCRA 411, citing People v. Cabalquinto, G.R. No. 167693, September 19, 2006, 502 SCRA 419, wherein the Court resolved to withhold the real name of the victim-survivor and to use fictitious initials instead to represent her in its decisions. Likewise, the personal circumstances of the victims-survivors or any other information tending to establish or compromise their identities, as well as those of their immediate or household members, shall not be disclosed. The names of such victims, and their immediate family members other than the accused, shall appear as “AAA”, “BBB”, “CCC”, and so on. Addresses shall appear as “x x x” as in “No. “x x x Street, x x x District, City of x x x.”

The Court took note of the legal mandate on the utmost confidentiality of proceedings involving violence against women and children set forth in Sec. 29 of Republic Act No. 7610, otherwise known as, Anti-Violence Against Women and Their Children Act of 2004; and Sec. No. 40 of A.M. No. 04-10-11-SC, known as, Rule on Violence against Women and Their Children effective November 15, 2004.

^[3] Rollo, p. 39-40

^[4] CA Decision, id. at 6-16.

^[5] TSN of May 17, 2001, records, pp. 176-180.

^[6] TSN of May 17, 2001, records, pp. 181-187.

^[7] TSN of May 17, 2001, records, pp. 187-193.

^[8] TSN of September 6, 2001, records, pp. 210-216.

^[9] TSN of September 13, 2001, records, pp. 225-226.

^[10] TSN of September 13, 2001, records, pp. 229-237.

^[11] TSN of November 8, 2001, records, pp. 244-248.

^[12] TSN of March 7, 2002, records, pp. 253-259.

^[13] TSN of March 7, 2002, records, pp. 259-261.

^[14] TSN of April 11, 2002, records, pp. 266-271.

^[15] G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

^[16] People v. Maglente, G.R. No. 179712, June 27, 2008.

^[17] Records, p. 117.

^[18] People v. Maglente, supra note 16.

^[19] Records, p. 61.

^[20] TSN of September 13, 2001, records, pp. 14-15.

^[21] TSN of September 6, 2001, records, pp. 210-216.

^[22] People v. Pangilinan, G.R. No. 171020, March 14, 2007, 518 SCRA 358, 386-387.

^[23] People v. Pangilinan, id. at 384-385.

^[24] Supra.

^[25] Exh. “A”, records, p. 59.

^[26] Exh. “B”, records, pp. 77 & 60.

^[27] Exh. “C”, records, p. 62.

^[28] People v. Tubongbanua, G.R. No. 171271, August 31, 2006, 500 SCRA 727, 741.

^[29] G.R. No. 170236, August 31, 2006, 500 SCRA 704.

^[30] Id. at 718-719.

^[31] People v. Lantano, G.R. No. 176734, January 28, 2008, 542 SCRA 640, 655.