The next question to be addressed is whether the prosecution was able to prove all the elements of the crime of rape under Article 266-A of the Revised Penal Code, as amended, which provides:
Art. 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:
a) Through force, threat, or intimidation;
b) When the offended party is deprived of reason or otherwise unconscious;
c) By means of fraudulent machination or grave abuse of authority; and
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.
We find that AAA remained steadfast in her assertion that appellant raped her through force and intimidation with the use of a samurai. And even after the incident, appellant threatened AAA that he would kill her and her aunt, i.e., appellant's wife, should AAA report the incident. Thus, AAA's testimony on the witness stand:
Q. What did the accused do to you?
A. He aimed the samurai at me and he took me inside the room, sir.
Q. And what happened when he took you inside the room?
ATTY. MARTINEZ:
Q. What date are you referring to?
A. I can no longer remember, sir.
FISCAL DAYAON:
Q. And what happened when you were in the room?
A. He aimed the samurai at me and directed me to remove my clothes, sir.
Q. Did you remove your clothes?
A. No, sir.
Q. Because you did not take off your clothes, what happened?
A. He was forcing me to remove my clothes. He was able to remove my clothes, sir.
Q. After undressing you, what happened?
A. He kissed me, sir.
Q. Where did he [kiss] you?
A. On my lips, sir.
Q. Where else?
A. He was [mashing] my breast.
Q. What else?
A. On my genitals.
Q. Aside from kissing you and mashing your breast and holding your vagina, what else did he do?
A. He lay on top of me.
Q. When he laid on top you, was the accused on his dress (sic) or what was his condition then?
A. He was naked, sir.
Q. Was he wearing a shirt?
A. No, sir.
Q. Was he wearing pants?
A. No, sir.
Q. What happened when he laid on top of you?
A. He was trying to insert his penis to my vagina.
FISCAL DAYAON:
Q. Was he able to insert his organ to your vagina?
A. No, sir.
Q. Could you tell us if his organ touched your vagina?
A. Yes, sir.
Q. What part of your vagina was touched by his organ?
A. I do not know.
Q. How many times did [the] accused try to insert his organ to your vagina?
A. Many times, sir.
Q. Did you not tell your aunt about this incident that the accused was trying to insert his organ to your vagina.
A. No, sir.
Q. Why did you not tell her?
A. No, sir because he was threatening to kill me and my aunt, sir.
Q. How did he tell you?
A. The samurai was pointed at me, sir.
Q. Could you tell us how did he tell you [that he will kill] you and your aunt?
A. Don't tell the truth or else I will kill you and your aunt. [45]
On clarification made by the Court after the direct examination, AAA testified, to wit:
Q. Did you feel anything when he was trying to insert his penis to your private organ?
A. There was, sir.
Q. Where were you hurt?
A. My vagina, sir.[46]
The Court made further clarification after the redirect examination, thus:
Q. Was there any occasion that your uncle inserted his penis to your vagina?
The witness
A. Yes, sir.
x x x x
Q. What did you feel when he did that to you.
A. It was painful, sir.[47]
Indeed, AAA testified in her redirect examination that appellant had inserted his organ into her vagina and that it was painful when appellant did it. It was the penetration that caused the pain. We held that rape is committed on the victim’s testimony that she felt pain.[48] This, at least, could be nothing but the result of penile penetration sufficient to constitute rape.[49] Rape is committed even with the slightest penetration of the woman's sex organ.[50]
A finding that the accused is guilty of rape may be based solely on the victim's testimony if such testimony meets the test of credibility.[51] We held that no woman, much less a child of such tender age, would willingly submit herself to the rigors, the humiliation and the stigma attendant upon the prosecution of rape, if she were not motivated by an earnest desire to put the culprit behind bars.[52]
Appellant argues that he could not be convicted of rape since based on the medical examination report, AAA's genitalia had no hymenal laceration which corroborated AAA's testimony that appellant merely kissed her and touched her breast on July 27, 2001.
Proof of hymenal laceration is not an element of rape.[53] An intact hymen does not negate a finding that the victim was raped. Penetration of the penis by entry into the lips of the vagina, even without laceration of the hymen, is enough to constitute rape, and even the briefest of contact is deemed rape.[54]
In People v. Bohol,[55] we explained the treatment of medical evidence as not essential in proving rape cases, thus,
There is no gainsaying that medical evidence is merely corroborative, and is even dispensable, in proving the crime of rape. In child sexual abuse cases particularly, normal physical findings are common due to several factors, such as delay in seeking medical examination, the rapid healing of injuries, washing, urinating or defecating after the sexual assault, the elasticity of the hymen, changes in the hymenal tissue due to estrogen effect when the victim is at the pubertal stage, or the type of sexual molestation involved, such as fondling, oral sodomy, or cunnilingus, which leaves no physical marks. The child's disclosure is the most important evidence of the sexual abuse she has gone through.[56]
While it appears from AAA's testimony that she was not raped precisely on July 27, 2001 as what appellant did was kiss her lips and mash her breast on that day, however, her entire testimony in the witness stand positively shows that appellant with the use of force and intimidation had carnal knowledge of her at some other time. She testified that appellant violated her since she was seven years old. The first time was when they were still staying in Angeles City where appellant touched her private parts; the second time was when they were already in Gerona, Tarlac, where appellant pointed a samurai at her and raped her; and the third time happened on July 27, 2001 when appellant kissed her lips and mashed her breast. Indeed, appellant may be convicted for rape in the light of AAA's testimony. For in rape cases, the date of the commission is not an essential element of the offense; what is material is its occurrence.[57]
Notably, the information alleges that the crime of rape was committed “on or about July 27, 2001,” thus the prosecution may prove that rape was committed on or about July 27, 2001, i.e., few months or years before, and not exactly on July 27, 2001.
In People v. Lizada,[58] wherein accused-appellant averred that the prosecution failed to adduce the requisite quantum of evidence that he raped the private complainant precisely on September 15, 1998 and October 22, 1998, we ruled:
The contention of accused-appellant does not persuade the Court. The private complainant testified that since 1996, when she was only eleven years old, until 1998, for two times a week, accused-appellant used to place himself on top of her and despite her tenacious resistance, touched her arms, legs and sex organ and inserted his finger and penis into her vagina. In the process, he ejaculated. Accused-appellant threatened to kill her if she divulged to anyone what he did to her. Although private complainant did not testify that she was raped on September 15, 1998 and October 22, 1998, nevertheless accused-appellant may be convicted for two counts of rape, in light of the testimony of private complainant.
It bears stressing that under the two Informations, the rape incidents are alleged to have been committed “on or about September 15, 1998” and “on or about October 22, 1998.” The words “on or about” envisage a period, months or even two or four years before September 15, 1998 or October 22, 1998. The prosecution may prove that the crime charged was committed on or about September 15, 1998 and on or about October 22, 1998.[59]
Appellant's main defense is denial. He claims that the charge was instigated by his wife's relatives who are against their relationship. Such defense remains unsubstantiated. Moreover, it would be the height of ingratitude for AAA, who was not even shown to have any improper motive, to falsely accuse appellant of sexual abuses especially that appellant and his wife treated her like their own daughter and the fact that appellant might go to jail. In fact, AAA suffered in silence out of fear for her and her aunt's lives if not for her cousin who saw appellant in the act of kissing her and touching her private parts. It was when she was brought to the DSWD that she made known appellant's abuses done to her.
Anent the alleged letter of AAA filed with the CA which sought to exonerate appellant from the charges filed against him, we find the same not worthy of belief. We quote with approval what the CA said in not giving probative value to such letter, to wit:
x x x We cannot consider the same as it has no probative value considering that it appears not to be the genuine signature of the private complainant AAA herself as compared to her signatures in the original complaint and her sworn statement. More so, it also appears that the said document is not the original one as required by the best evidence rule in criminal procedure. Lastly, it is worth noticeable that the execution of the said letter was not assisted by a counsel and it was not also notarized.[60]
In his Supplemental Brief, appellant claims that he should have been prosecuted for rape under RA No. 7610 since AAA was already more than 12 years old when the alleged rape was committed which carries the penalty of reclusion temporal in its medium period to reclusion perpetua.
We do not agree.
In People v. Dahilig,[61] wherein the question posed was whether the crime committed was rape (Violation of Article 266-A, par. 1, in relation to Article 266-B, 1st paragraph of the Revised Penal Code, as amended by RA No. 8353), or is it Child Abuse, defined and penalized by Section 5, (b), RA No. 7610, we said:
As elucidated by the RTC and the CA in their respective decisions, all the elements of both crimes are present in this case. The case of People v. Abay, however, is enlightening and instructional on this issue. It was stated in that case that if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5 (b) of R.A. No. 7610 or rape under Article 266-A (except paragraph 1 [d] of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Specifically, Abay reads:
Under Section 5 (b), Article III of RA 7610 in relation to RA 8353,if the victim of sexual abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse but for statutory rape under Article 266-A (1)(d) of the Revised Penal Code and penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5 (b) of RA 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act. Likewise, rape cannot be complexed with a violation of Section 5 (b) of RA 7610. Under Section 48 of the Revised Penal Code (on complex crimes), a felony under the Revised Penal Code (such as rape) cannot be complexed with an offense penalized by a special law.
In this case, the victim was more than 12 years old when the crime was committed against her. The Information against appellant stated that AAA was 13 years old at the time of the incident. Therefore, appellant may be prosecuted either for violation of Section 5 (b) of RA 7610 or rape under Article 266-A (except paragraph 1 [d]) of the Revised Penal Code. While the Information may have alleged the elements of both crimes, the prosecution's evidence only established that appellant sexually violated the person of AAA through force and intimidation by threatening her with a bladed instrument and forcing her to submit to his bestial designs. Thus, rape was established.
Accordingly, the accused can indeed be charged with either Rape or Child Abuse and be convicted therefor. Considering, however, that the information correctly charged the accused with rape in violation of Article 266-A par. 1 in relation to Article 266-B, 1st par. of the Revised Penal Code, as amended by R.A. No. 8353, and that he was convicted therefor, the CA should have merely affirmed the conviction.
As in the present case, appellant can indeed be charged with either Rape or Child Abuse and be convicted therefor. The prosecution's evidence established that appellant had carnal knowledge of AAA through force and intimidation by threatening her with a samurai. Thus, rape was established. Considering that in the resolution of the Assistant Provincial Prosecutor, he resolved the filing of rape under Article 266-A of the Revised Penal Code for which appellant was convicted by both the RTC and the CA, therefore, we merely affirm the conviction.
x x x."
