G.R. No. 144195




SECOND DIVISION G.R. No. 144195 May 25, 2004 PEOPLE OF THE PHILIPPINES, appellee, vs. FLORENTINO BASCUGIN y REYES, appellant. D E C I S I O N CALLEJO, SR., J.: Before us on appeal is the Decision¹ of the Regional Trial Court of Tagaytay City, Branch 18, finding the appellant Florentino Bascugin y Reyes guilty beyond reasonable doubt of rape, sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the victim Ivee Peñano y Hernando the amount of ₱50,000.00 as moral damages. The appellant was charged of rape in an Information, which reads: Undersigned Asst. Provincial Prosecutor, upon prior complaint of the offended party, accuses FLORENTINO BASCUGIN y REYES of the crime of RAPE, committed as follows: That on or about February 14, 1996 in the Municipality of Alfonso, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, with lewd designs, did then and there, willfully, unlawfully and feloniously, undress, abuse and have sexual intercourse with one IVEE PEÑANO y HERNANDO, a 13-year-old minor (born on February 19, 1983), against her will and without her consent, to her damage and prejudice. CONTRARY TO LAW.² The appellant was arraigned, assisted by counsel, and entered a plea of not guilty. The Case for the Prosecution Ivee H. Peñano was born on February 19, 1983.³ She and her parents, the spouses Isidro and Victoria Peñano, resided in Sitio Pilipit, Barangay Caytitinga, Alfonso, Cavite.⁴ Ivee was somewhat mentally-retarded.⁵ In 1995, when Ivee was only twelve years old and was in Grade V, her maternal granduncle, the appellant Florentino "Tetong" Bascugin, who was then 74 years old,⁶ raped her twelve (12) times. In 1996, when Ivee was already in Grade VI, the appellant raped her eight (8) times. The appellant sometimes gave her money after having sex with her.⁷ Ivee felt great pains in her private part whenever she urinated.⁸ However, her hymen remained intact and unruptured. At about noon on February 14, 1996, Valentine’s Day, Ivee was on her way from school and passed by the appellant’s house. The appellant was at the gate. His wife and four children were out of the house. The appellant asked Ivee to go inside the house, and the latter agreed. However, the appellant brought her to the toilet and told her to undress. He cajoled Ivee not to divulge the incident to her parents and promised to give her ₱100.00 periodically until she grew up. The appellant also assured her that since he was already 74 years old, she would not get pregnant anymore.⁹ However, Ivee refused, and told the appellant that her parents might scold her. She also told him that she felt severe pains in her private part whenever she urinated. The appellant persisted, removed her clothes and panties and undressed himself. He even told her to sit on the toilet bowl, and to spread her legs.¹⁰ He knelt and bended over her and tried to insert his penis into her vagina. The appellant’s penis was in full erection and was somewhat big;¹¹ thus Ivee resisted because of severe pains in her vagina.¹² She felt as if her vagina was being wounded (nasusugatan).¹³ She then told the appellant to stop. He acquiesced, put on his clothes, gave her money and left. Ivee also dressed up and went home.¹⁴ Ivee felt excruciating pain in her private parts. She told her parents what the appellant had done to her. Her father Isidro Peñano brought Ivee to Dr. Eduardo T. Vargas, the Medico-Legal Officer of the National Bureau of Investigation, who examined her and signed Living Case No. MG-96-274 containing the following findings: GENERAL PHYSICAL EXAMINATION: Height: 146.0 cms. Weight: 72.0 lbs. Fairly nourished, conscious, coherent, cooperative, ambulatory, subject. Breasts, developing, hemispherical, firm. Areola, light brown, 2.5 cms. in diameter. Nipples, light brown, protruding 1.0 cm. in diameter. No extragenital physical injuries noted. GENITAL EXAMINATION: Pubic hair, fully grown, scanty. Labia majora and labia minora, coaptated. Fourchette, tense. Vestibular mucosa, pinkish. Hymen, tall, thick, intact. Hymenal orifice, admits a tube, 2.0 cms. in diameter. Vaginal walls, tight. Rugosities, prominent. CONCLUSIONS: 1) No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination. 2) Hymen, intact, and its orifice, small (2.0 cms., in diameter) as to preclude complete penetration by an average-sized adult, Filipino male organ in full erection without producing any genital injury.¹⁵ On the same day, Ivee gave a sworn statement to SPO3 Zosimo Crizaldo of the Alfonso Police Station, Cavite.¹⁶ The Case for the Appellant The appellant denied the charge. He testified that he was in his house on February 14, 1996 and did not see his grandniece Ivee that day. Before he was arrested, he used to see Ivee and they would greet each other, but he never invited her to his house. Neither was there any occasion when she went to his house. His relationship with Ivee’s family was alright except that when he received his pension for the first time years back, her parents tried to borrow money from him, but he refused. The couple resented him for his refusal to lend them money. On January 31, 2000, the trial court rendered judgment finding the appellant guilty beyond reasonable doubt of the crime of rape, the decretal portion of which reads: WHEREFORE, the Court finds the accused Florentino Bascugin y Reyes to be GUILTY beyond reasonable doubt of the crime of "Rape" and hereby sentences him to suffer imprisonment of Reclusion Perpetua. Accused is also ordered to indemnify the victim Ivee Peñano the sum of Fifty Thousand Pesos (P50,000.00) as moral damages. Cost de oficio. SO ORDERED.¹⁷ The appellant now appeals the decision, contending that the lower court erred in deciding that he was guilty of the crime of rape.¹⁸ The appellant asserts that, based on the report and testimony of Dr. Eduardo T. Vargas, Ivee’s hymen is intact. Dr. Vargas found no external injuries in her private parts; nor did he find any rupture in the hymen, thus, negating Ivee’s claim that the appellant had raped her. The doctor declared that since Ivee did not suffer any extragenital injuries in her private part, there was no medical basis for her claim that she was raped. The appellant avers that based on Ivee’s testimony that she was seated on the toilet bowl and the appellant was in a kneeling position, it was highly improbable for him to have attempted to insert his penis into her vagina, much less penetrate her. Furthermore, the testimony of Ivee during the preliminary investigation, in which she claimed that the appellant made her lie down before abusing her, is inconsistent with her testimony before the trial court that she was made to sit on the toilet bowl while the appellant knelt and tried to insert his penis into her vagina. The appellant alleges that the prosecution failed to prove the following: a) that Ivee was forced and intimidated into having sexual intercourse with him; b) that she was under 12 years old when she was allegedly raped; and, c) that she was feeble-minded, mentally defective or a mental retardate. Hence, the appellant asserts, he is not guilty of rape. For its part, the Office of the Solicitor General contends that the absence of abrasions or contusions on the vaginal wall does not rule out rape, because the slightest penetration is enough. Furthermore, a medical examination is not indispensable in the prosecution of rape. The victim’s testimony alone, if credible, will suffice to convict. The claim of the appellant, that it was highly impossible for his penis to penetrate the vagina of the victim while the latter was sitting on the toilet bowl and the former was kneeling, is unmeritorious as there was no explanation offered. The OSG asserts that when a woman says that she has, in fact, been raped, she says in effect all that is necessary to show that she has been raped. With regard to the inconsistency of Ivee’s testimony, the OSG offered the explanation that the victim may be trying to obliterate from her memory the ugly details of her harrowing experience, or that she could have been referring to any of the numerous times that the appellant had sexual intercourse with her. Finally, it is the trial court which assigns values to the testimonies of the witnesses on the stand and weighs their credibility. The appeal has no merit. In reviewing rape cases, this Court had always been guided by three well-entrenched principles: (1) an accusation of rape can be made with facility and while the accusation is difficult to prove, it is even more difficult for the accused, though innocent, to disprove; (2) considering that in the nature of things, only two persons are usually involved in the crime of rape, the testimony of the complainant should be scrutinized with great 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.¹⁹ The findings and conclusions of medical experts are not conclusive on the courts which may substitute their own findings and conclusions for those of experts. The absence of external injuries in the hymenal area or external genitalia of Ivee does not preclude a rape.²⁰ In this case, the appellant resolutely tried to insert his erect penis into Ivee’s vagina, but failed to penetrate her because her hymen was merely 2 cms. in diameter, while his penis was hard and quite big²¹ and she felt excruciating pains in her private part. Ever since the appellant’s prior sexual assaults on her, Ivee had been suffering severe pains in her vagina whenever she urinated: ATTY. VARGAS: Did he not do anything to you? A. Sometimes he asked me to undress, but I refused because I told him that I suffer (sic) pain when I urinate. Q. Why did you suffer pain when you urinate? A. Because of his constant sexual intercourse with me. ATTY. VILLANUEVA: May I move that the answer of the witness in the vernacular be placed on record. COURT: Granted. WITNESS: "Kahihindot po niya sa akin." ATTY. VARGAS: When you said the word "hindot," what do you mean, Ivee? A. He told me that I will no longer get pregnant because he is already old. Q. Now, on that particular date, February 14, 1996, did the accused do (sic) sexual intercourse on (sic) you? ATTY. VILLANUEVA: Objection, your Honor, it is very leading. COURT: Question which can be answered by yes or no is never leading. WITNESS: Yes, sir. ATTY. VARGAS: How did he do that? A. He told me to undress and he asked me to sit on the toilet bowl and then he sexually abused me, sir. ATTY. VILLANUEVA: May I move that the answer of the witness in the vernacular be placed on record. WITNESS: "Ako po ay pinaghubad niya, naupo sa kubeta at hinindot niya." ATTY. VARGAS: What did he do while you were sitting on the toilet bowl? A. He knelt while I was sitting on the toilet bowl, and then he inserted, tried to insert his penis into my vagina but he could not insert it, sir. Q. What did you feel when he was not able to insert his organ against (sic) your organ? A. "Masakit na pong maigi. Parang napapanit." I felt severe pain as if it was being torn, as if I am injured, "nasusugatan."²² The credibility of Ivee’s testimony cannot be assailed by the inconsistency between her testimony during the preliminary investigation, that she was made to lie down before the appellant ravished her, and her testimony during the trial that she was made to sit on the toilet bowl when the appellant tried to insert his penis into her vagina. First. The inconsistency is peripheral and collateral to the gravamen of the crime – the appellant’s carnal knowledge of the private complainant under any of the circumstances provided in Article 335 of the Revised Penal Code, as amended. Second. During the trial, Ivee was not confronted with her testimony during the preliminary examination and asked to explain the inconsistency. Third. There is no evidence on record as to how high the toilet bowl was from the ground. It may have been difficult for the appellant to insert his penis into Ivee’s vagina while he was kneeling down and Ivee was seated on the toilet bowl; however, it was not improbable or physically impossible for him to have done so. Fourth. The trial court found badges of truth on Ivee’s testimony. Indeed, Ivee was consistent throughout her testimony during the trial that she was made to sit on the toilet bowl with her legs spread apart before the appellant tried to insert his penis. Ivee was barely thirteen years old, and only in Grade VI. At that young and innocent age, Ivee could not have contrived a narration replete with details as to how she was sexually assaulted by the appellant. There is evidence on record that the appellant enveigled Ivee into having sexual intercourse with him by assuring her that because he was already too old, she would not get pregnant, and even offered to give her money. Nevertheless, we find the appellant’s contention that the prosecution failed to prove that he forced, coerced and intimidated Ivee into having sexual intercourse with him to be without merit. We have held that force and intimidation necessary in rape is naturally a relative term, depending not only on the age, size and strength of the parties and their relation to each other but also on the extant facts and circumstances.²³ During the trial, the private prosecutor, with leave of court, moved to propound leading questions on Ivee because she was somewhat mentally retarded. The appellant did not object. The court granted the motion of the private prosecution. This is gleaned from the transcript of stenographic notes, viz: ATTY. VARGAS: May I be allowed to ask leading questions because this victim is somewhat mentally retarded. COURT: Granted?²⁴ In People v. Dalandas,²⁵ we held that the mental retardation of a rape victim may be discerned by the trial court or the public prosecutor from observing her demeanor and conduct during the trial or the preliminary investigation. The appellant admitted that he is the victim’s granduncle. The appellant had been sexually abusing Ivee since she was twelve years old and had made her practically his sexual slave. Even as the appellant enslaved her, Ivee resisted because she was afraid of her mother and felt pains in her vagina because of appellant’s prior sexual assaults. Despite Ivee’s resistance, the appellant persisted to satiate his bestial desires. Considering her close relationship to the appellant, the fact that she is somewhat retarded, and our ruling that in rape committed by a close kin, moral ascendancy takes the place of violence and intimidation,²⁶ we find that there was no valid consent on the part of Ivee when the appellant sexually assaulted her. In a case of fairly recent vintage, we held, thus: The Court is not convinced. It bears stressing that the absence of struggle on the part of the victim does not necessarily negate the commission of rape. Appellant undoubtedly exercises moral ascendancy and influence over 13-year-old Lilibeth, the latter having considered the former as her grandfather, a state that should be enough to cow her into submission to his depraved and demented lust. Intimidated indeed, she has been left with no choice but to fearfully succumb to the pleasure and will of her rapist. Verily, her failure to shout for help or fight back cannot be equated as being one of voluntary submission to the criminal intent of the accused. Fear, in lieu of force or violence, is subjective. Addressed to the mind of the victim of rape, its presence cannot be tested by any hard- and-fast rule but must instead be viewed in the light of the perception and judgment of the victim at the time of the crime. In addition, the Court has repeatedly observed that different people act differently to a given stimulus or type of situation, and there is no standard form of behavioral response that can be expected from those who are confronted with a strange, startling or frightening experience.²⁷ Moreover, upon arriving home from the house of the appellant, Ivee told her parents how the appellant had ravished her. She agreed to be examined by Dr. Vargas and shortly thereafter charged the appellant of rape. The actuations of Ivee immediately after she was abused by the appellant are concrete evidence that she did not consent to have sexual intercourse with the appellant. The trial court correctly convicted the appellant of consummated rape and not merely of attempted rape. For rape to be consummated, the hymen of the private complainant need not be penetrated or ruptured. It is enough that the penis reaches the pudendum, or, at the very least, the labia. The briefest of contacts under circumstances of force, intimidation or unconsciousness, even without laceration of the hymen, is deemed to be rape in our jurisprudence.²⁸ 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.²⁹ The evidence on record shows that the penis of the appellant was quite big. It was hard as the appellant resolutely tried to insert it into the vagina of Ivee. The appellant pushed his penis so forcefully in his resolute desire to penetrate her that Ivee felt as if her vagina was being wounded (nasusugatan). We are convinced that under the factual milieu of the case, the penis of the appellant touched at least the labia of the pudendum of Ivee, thus, consummating the crime. As we held in People v. Clopino:³⁰ It is not necessary, in order to have rape, that the accused-appellant succeed in having full penetration. The slightest touching of the lips of the female organ or of the labia of the pudendum constitutes rape. Accused-appellant is certainly wrong when he states that because his penis was not able to penetrate the vagina despite his efforts to do so, the crime should only be either attempted rape or acts of lasciviousness. As the Solicitor General rightly states, it can be logically concluded that when the accused-appellant was trying to insert his penis into the victim’s vagina, his penis touched the middle part of the complainant’s vagina and penetrated the labia of the pudendum. It is impossible for the penis of the accused-appellant not to touch the labia of the pudendum in trying to penetrate her. … The appellant’s denial cannot prevail over the positive testimony of Ivee. Denials are self-serving negative evidence which cannot prevail over the positive, straightforward and unequivocal testimony of the victim.³¹ When the offended parties are young and immature girls from the ages of twelve to sixteen, courts are inclined to lend credence to their version of what transpired, considering not only their relative vulnerability but also the shame and embarrassment to which they would be exposed by court trial if the matter about which they testified is not true. Considering that the victim was of tender years and not exposed to the ways of the world, it is improbable that she would impute a crime as serious as rape to the appellant, her maternal granduncle. The appellant’s contention that the charge against him was a concoction of Ivee’s parents, because of his rejection of the couple’s previous request for a loan deserves scant consideration. We cannot believe that Ivee’s parents would contrive the charge against the appellant and subject Ivee to the humiliation of exposing her private parts and testifying in court simply because, years back, the appellant rejected their request for a loan. The appellant himself admitted that his relationship with the Peñanos had been cordial for years. The trial court correctly found the appellant guilty beyond reasonable doubt of rape under Article 335, as amended by Republic Act No. 7659 of the Revised Penal Code The trial court, likewise, correctly imposed the penalty of reclusion perpetua on the appellant. However, the court only awarded ₱50,000.00 as moral damages to the victim but failed to award civil indemnity ex delicto. The victim is also entitled to the amount of ₱50,000.00 as civil indemnity ex-delicto in line with recent jurisprudence.³² Ivee is entitled to exemplary damages in the amount of ₱25,000.00, to deter granduncles with perverse tendencies and aberrant behaviors from sexually abusing their grandnieces.³³ The trial court’s decision shall, thus, be modified. WHEREFORE, the Decision of the Regional Trial Court of Tagaytay City, Branch 18, finding the appellant Florentino Bascugin y Reyes guilty of simple rape under Article 335 of the Revised Penal Code, as amended, is hereby AFFIRMED WITH MODIFICATION. The said appellant is ORDERED to pay the victim, Ivee Peñano y Hernando, the amount of ₱50,000.00 as civil indemnity; ₱50,000.00 as moral damages; and ₱25,000.00 as exemplary damages. Costs de oficio. SO ORDERED. Puno, Quisumbing*, Austria-Martinez, and Tinga, JJ., concur. Footnotes * On official leave. ** Acting Chairman. ¹ Penned by Judge Alfonso S. Garcia. ² Records, p. 34. ³ Id. at 25. ⁴ TSN, 23 September 1998, p. 2. ⁵ Id. at 6. ⁶ Ivee called the appellant "Lolo Tetong." ⁷ Exhibit "B," Records, p. 5. ⁸ TSN, 23 September 1998, p. 6. ⁹ Ibid. ¹⁰ Id. at 15. ¹¹ Id. at 7. ¹² Id. at 8. ¹³ Id. ¹⁴ Id. at 5. ¹⁵ Exhibit "A," Records, p. 7. ¹⁶ Exhibit "B," Id. at 5. ¹⁷ Rollo, p. 16. ¹⁸ Id. at 35. ¹⁹ People v. Noli Novio, G.R. No. 139332, June 20, 2003. ²⁰ People v. Santos, 366 SCRA 52 (2001). ²¹ Ivee described the size of appellant’s penis as "malaki-laki ng kaunti." ²² TSN, 23 September 1998, pp. 6-8. ²³ See People v. Sandico, 307 SCRA 204 (1999). ²⁴ TSN, 23 September 1998, p. 6. ²⁵ 394 SCRA 433 (2002). ²⁶ People v. Bernabe Gutierrez, G.R. Nos. 147656-58, May 9, 2003. ²⁷ People v. Lustre, 330 SCRA 189 (2000). ²⁸ People v. Tagaylo, 345 SCRA 284 (2000). ²⁹ People v. Campuhan, 329 SCRA 270 (2000); People v. Balgos, 323 SCRA 372 (2000). ³⁰ 290 SCRA 432 (1998) cited in People v. Estrella, 352 SCRA 652 (2001). ³¹ See People v. Teofilo Madronio, G.R. Nos. 137587 & 138329, July 29, 2003. ³² See People v. Exequiel Mahinay, G.R. No. 139609, November 24, 2003. ³³ Ibid. The Lawphil Project - Arellano Law Foundation