SECOND DIVISION

[G.R. No. 173540. January 22, 2014.]

PEREGRINA MACUA VDA. DE

AVENIDO, petitioner, vs. TECLA HOYBIA
AVENIDO, respondent.

DECISION

PEREZ, J p:
This is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court, assailing the 31 August 2005 Decision 1 of the
Court of Appeals (CA) in CA-G.R. CV No. 79444, which reversed
the 25 March 2003 Decision 2 of the Regional Trial Court (RTC),
Branch 8 of Davao City, in a complaint for Declaration of
Absolute Nullity of Marriage docketed as Civil Case No. 26,
908-98.
The Facts
This case involves a contest between two women both
claiming to have been validly married to the same man, now
deceased.
Respondent Tecla Hoybia Avenido (Tecla) instituted on 11
November 1998, a Complaint for Declaration of Nullity of
Marriage against Peregrina Macua Vda. de Avenido (Peregrina)
on the ground that she (Tecla), is the lawful wife of the
deceased Eustaquio Avenido (Eustaquio). In her complaint,
Tecla alleged that her marriage to Eustaquio was solemnized
on 30 September 1942 in Talibon, Bohol in rites officiated by
the Parish Priest of the said town. According to her, the fact of
their marriage is evidenced by a Marriage Certificate recorded
with the Office of the Local Civil Registrar (LCR) of Talibon,
Bohol. However, due to World War II, records were destroyed.
Thus, only a Certification 3 was issued by the LCR.
During the existence of Tecla and Eustaquio's union, they
begot four (4) children, namely: Climaco H. Avenido, born on
30 March 1943; Apolinario H. Avenido, born on 23 August
1948; Editha A. Ausa, born on 26 July 1950, and Eustaquio H.
Avenido, Jr., born on 15 December 1952. Sometime in 1954,
Eustaquio left his family and his whereabouts was not known.
In 1958, Tecla and her children were informed that Eustaquio
was in Davao City living with another woman by the name of
Buenaventura Sayson who later died in 1977 without any
issue. DHIcET
In 1979, Tecla learned that her husband Eustaquio got married
to another woman by the name of Peregrina, which marriage
she claims must be declared null and void for being bigamous
an action she sought to protect the rights of her children
over the properties acquired by Eustaquio.
On 12 April 1999, Peregrina filed her answer to the complaint
with counterclaim, 4 essentially averring that she is the legal
surviving spouse of Eustaquio who died on 22 September 1989
in Davao City, their marriage having been celebrated on 30
March 1979 at St. Jude Parish in Davao City. She also
contended that the case was instituted to deprive her of the
properties she owns in her own right and as an heir of
Eustaquio.
Trial ensued.
Tecla presented testimonial and documentary evidence
consisting of:
1) Testimonies of Adelina Avenido-Ceno (Adelina),
Climaco Avenido (Climaco) and Tecla herself to
substantiate her alleged prior existing and valid
marriage with (sic) Eustaquio;
2) Documentary evidence such as the following:
a. Certification of Loss/Destruction of Record of
Marriage from 1900 to 1944 issued by the
Office of the Civil Registrar, Municipality of
Talibon, Bohol; 5
b. Certification of Submission of a copy of
Certificate of Marriage to the Office of the
Civil Registrar General, National Statistics
Office (NSO), R. Magsaysay Blvd., Sta. Mesa,
Manila; 6
c. Certification that Civil Registry records of
births, deaths and marriages that were
actually filed in the Office of the Civil
Registrar General, NSO Manila, started only
in 1932; 7
d. Certification that Civil Registry records
submitted to the Office of the Civil Registrar
General, NSO, from 1932 to the early part of
1945, were totally destroyed during the
liberation of Manila; 8
e. Certification of Birth of Apolinario Avenido; 9
f. Certification of Birth of Eustaquio Avenido,
Jr.; 10
g. Certification of Birth of Editha Avenido; 11
h. Certification of Marriage between Eustaquio
Sr., and Tecla issued by the Parish Priest of
Talibon, Bohol on 30 September 1942; 12
i. Certification that record of birth from 1900 to
1944 were destroyed by Second World War
issued by the Office of the Municipal
Registrar of Talibon, Bohol, that they cannot
furnish as requested a true transcription
from the Register of Birth of Climaco
Avenido; 13
 j. Certificate of Baptism of Climaco indicating
that he was born on 30 March 1943 to
spouses Eustaquio and Tecla; 14
k. Electronic copy of the Marriage Contract
between Eustaquio and Peregrina. 15
On the other hand, Peregrina testified on, among others, her
marriage to Eustaquio that took place in Davao City on 3
March 1979; her life as a wife and how she took care of
Eustaquio when he already had poor health, as well as her
knowledge that Tecla is not the legal wife, but was once a
common law wife of Eustaquio. 16 Peregrina likewise set forth
documentary evidence to substantiate her allegations and to
prove her claim for damages, to wit:
1) Marriage Contract 17 between Peregrina and the
late Eustaquio showing the date of marriage on 3
March 1979; cDaEAS
2) Affidavit of Eustaquio executed on 22 March 1985
declaring himself as single when he contracted
marriage with the petitioner although he had a
common law relation with one Tecla Hoybia with
whom he had four (4) children namely: Climaco,
Tiburcio, Editha and Eustaquio, Jr., all surnamed
Avenido; 18
3) Letter of Atty. Edgardo T. Mata dated 15 April
2002, addressed to the Civil Registrar of the
Municipality of Alegria, Surigao del Norte; 19 and
4) Certification dated 25 April 2002 issued by Colita
P. Umipig, in her capacity as the Civil Registrar of
Alegria, Surigao del Norte. 20
In addition, as basis for the counterclaim, Peregrina averred
that the case was initiated in bad faith so as to deprive her of
the properties she owns in her own right and as an heir of
Eustaquio; hence, her entitlement to damages and attorney's
fees.
On 25 March 2003, the RTC rendered a Decision 21 denying
Tecla's petition, as well as Peregrina's counter-claim. The
dispositive portion thereof reads:
For the Foregoing, the petition for the
"DECLARATION OF NULLITY OF MARRIAGE" filed
by petitioner TECLA HOYBIA AVENIDO against
respondent PEREGRINA MACUA is herebyDENIED.
The "COUNTERCLAIM" filed by
respondent PEREGRINA MACUA against
petitioner TECLA HOYBIA AVENIDO is
hereby DISMISSED. 22
Not convinced, Tecla appealed to the CA raising as error the
trial court's alleged disregard of the evidence on the existence
of her marriage to Eustaquio.
In its 31 August 2005 Decision, 23 the CA ruled in favor of
Tecla by declaring the validity of her marriage to Eustaquio,
while pronouncing on the other hand, the marriage between
Peregrina and Eustaquio to be bigamous, and thus, null and
void. The CA ruled:
The court a quo committed a reversible error when it
disregarded (1) the testimonies of [Adelina], the
sister of EUSTAQUIO who testified that she personally
witnessed the wedding celebration of her older
brother EUSTAQUIO and [Tecla] on 30 September
1942 at Talibon, Bohol; [Climaco], the eldest son of
EUSTAQUIO and [Tecla], who testified that his mother
[Tecla] was married to his father, EUSTAQUIO, and
[Tecla] herself; and (2) the documentary evidence
mentioned at the outset. It should be stressed that
the due execution and the loss of the marriage
contract, both constituting the condition sine qua
non, for the introduction of secondary evidence of its
 contents, were shown by the very evidence the trial
court has disregarded.24
Peregrina now questions the said ruling assigning as error,
among others, the failure of the CA to appreciate the validity
of her marriage to Eustaquio. For its part, the Office of the
Solicitor General (OSG), in its Memorandum 25 dated 5 June
2008, raises the following legal issues:
1. Whether or not the court can validly rely on the
"presumption of marriage" to overturn the
validity of a subsequent marriage;
2. Whether or not secondary evidence may be
considered and/or taken cognizance of, without
proof of the execution or existence and the
cause of the unavailability of the best evidence,
the original document; and
3. Whether or not a Certificate of Marriage issued by
the church has a probative value to prove the
existence of a valid marriage without the priest
who issued the same being presented to the
witness stand. 26 DCHIAS
Our Ruling
Essentially, the question before us is whether or not the
evidence presented during the trial proves the existence of the
marriage of Tecla to Eustaquio.
The trial court, in ruling against Tecla's claim of her prior valid
marriage to Eustaquio relied on Tecla's failure to present her
certificate of marriage to Eustaquio. Without such certificate,
the trial court considered as useless the certification of the
Office of the Civil Registrar of Talibon, Bohol, that it has no
more records of marriages during the period 1900 to 1944.
The same thing was said as regards the Certification issued by
the National Statistics Office of Manila. The trial court
observed:
 Upon verification from the NSO, Office of the Civil
Registrar General, Manila, it, likewise, issued a
Certification (Exhibit "B") stating that:
records from 1932 up to early part of 1945 were
totally destroyed during the liberation of Manila
on February 4, 1945. What are presently filed in
this office are records from the latter part of
1945 to date, except for the city of Manila which
starts from 1952. Hence, this office has no way
of verifying and could not issue as requested,
certified true copy of the records of marriage
between [Eustaquio] and [Tecla], alleged to have
been married on 30th September 1942, in
Talibon, Bohol. 27
In the absence of the marriage contract, the trial court did not
give credence to the testimony of Tecla and her witnesses as it
considered the same as mere self-serving assertions. Superior
significance was given to the fact that Tecla could not even
produce her own copy of the said proof of marriage. Relying on
Section 3 (a) and Section 5, Rule 130 of the Rules of Court, the
trial court declared that Tecla failed to prove the existence of
the first marriage.
The CA, on the other hand, concluded that there was a
presumption of lawful marriage between Tecla and Eustaquio
as they deported themselves as husband and wife and begot
four (4) children. Such presumption, supported by
documentary evidence consisting of the same Certifications
disregarded by the trial court, as well as the testimonial
evidence especially that of Adelina Avenido-Ceno, created,
according to the CA, sufficient proof of the fact of marriage.
Contrary to the trial court's ruling, the CA found that its
appreciation of the evidence presented by Tecla is well in
accord with Section 5, Rule 130 of the Rules of Court.
We uphold the reversal by the CA of the decision of the trial
court. Quite recently, in Aonuevo v. Intestate Estate of
Rodolfo G. Jalandoni, 28 we said, citing precedents, that:
While a marriage certificate is considered the
primary evidence of a marital union, it is not
regarded as the sole and exclusive evidence of
marriage. Jurisprudence teaches that the fact of
marriage may be proven by relevant evidence other
than the marriage certificate. Hence, even a person's
birth certificate may be recognized as competent
evidence of the marriage between his parents.
The error of the trial court in ruling that without the marriage
certificate, no other proof of the fact can be accepted, has
been aptly delineated in Vda de Jacob v. Court of
Appeals. 29 Thus:
It should be stressed that the due execution and the
loss of the marriage contract, both constituting
the conditio sine qua non for the introduction of
secondary evidence of its contents, were shown by
the very evidence they have disregarded. They have
thus confused the evidence to show due execution
and loss as "secondary" evidence of the marriage.
In Hernaez v. Mcgrath, the Court clarified this
misconception thus:
. . . [T]he court below was entirely mistaken
in holding that parol evidence of the
execution of the instrument was
barred. The court confounded the execution
and the contents of the document. It is the
contents, . . . which may not be prove[n] by
secondary evidence when the instrument
itself is accessible. Proofs of the execution
are not dependent on the existence or non-
existence of the document, and, as a
 matter of fact, such proofs of the contents:
due execution, besides the loss, has to be
shown as foundation for the introduction of
secondary evidence of the contents.
xxx xxx xxx
Evidence of the execution of a document is, in
the last analysis, necessarily collateral or
primary. It generally consists of parol testimony
or extrinsic papers. Even when the document is
actually produced, its authencity is not
necessarily, if at all, determined from its face or
recital of its contents but by parol evidence. At
the most, failure to produce the document, when
available, to establish its execution may effect
the weight of the evidence presented but not the
admissibility of such evidence.
The Court of Appeals, as well as the trial court, tried
to justify its stand on this issue by relying on Lim
Tanhu v. Ramolete. But even there, we said that
"marriage may be prove[n] by other competent
evidence.
Truly, the execution of a document may be proven by
the parties themselves, by the swearing officer, by
witnesses who saw and recognized the signatures of
the parties; or even by those to whom the parties
have previously narrated the execution thereof. The
Court has also held that "[t]he loss may be shown by
any person who [knows] the fact of its loss, or by any
one who ha[s] made, in the judgment of the court, a
sufficient examination in the place or places where
the document or papers of similar character are
usually kept by the person in whose custody the
document lost was, and has been unable to find it; or
who has made any other investigation which is
 sufficient to satisfy the court that the instrument
[has] indeed [been] lost."
In the present case, due execution was established
by the testimonies of Adela Pilapil, who was present
during the marriage ceremony, and of petitioner
herself as a party to the event. The subsequent loss
was shown by the testimony and the affidavit of the
officiating priest, Monsignor Yllana, as relevant,
competent and admissible evidence. Since the due
execution and the loss of the marriage contract were
clearly shown by the evidence presented, secondary
evidence-testimonial and documentary-may be
admitted to prove the fact of marriage. 30
As correctly stated by the appellate court: aSHAIC
In the case at bench, the celebration of marriage
between [Tecla] and EUSTAQUIO was established by
the testimonial evidence furnished by [Adelina] who
appears to be present during the marriage
ceremony, and by [Tecla] herself as a living witness
to the event. The loss was shown by the certifications
issued by the NSO and LCR of Talibon, Bohol. These
are relevant, competent and admissible evidence.
Since the due execution and the loss of the marriage
contract were clearly shown by the evidence
presented, secondary evidence testimonial and
documentary may be admitted to prove the fact of
marriage. In PUGEDA v. TRIAS, the Supreme Court
held that "marriage may be proven by any
competent and relevant evidence. The testimony by
one of the parties to the marriage or by one of the
witnesses to the marriage has been held to be
admissible to prove the fact of marriage. The person
who officiated at the solemnization is also competent
to testify as an eyewitness to the fact of marriage."
 xxx xxx xxx
The court a quo committed a reversible error when it
disregarded (1) the testimonies of [Adelina], the
sister of EUSTAQUIO who testified that she personally
witnessed the wedding celebration of her older
brother EUSTAQUIO and [Tecla] on 30 September
1942 at Talibon, Bohol; [Climaco], the eldest son of
EUSTAQUIO and [Tecla], who testified that his mother
[Tecla] was married to his father, EUSTAQUIO, and
[Tecla] herself; and (2) the documentary evidence
mentioned at the outset. It should be stressed that
the due execution and the loss of the marriage
contract, both constituting the condition sine qua
non for the introduction of secondary evidence of its
contents, were shown by the very evidence the trial
court has disregarded.31
The starting point then, is the presumption of marriage.
As early as the case of Adong v. Cheong Seng Gee, 32 this
Court has elucidated on the rationale behind the presumption:
The basis of human society throughout the civilized
world is that of marriage. Marriage in this jurisdiction
is not only a civil contract, but it is a new relation, an
institution in the maintenance of which the public is
deeply interested. Consequently, every intendment
of the law leans toward legalizing matrimony. Persons
dwelling together in apparent matrimony are
presumed, in the absence of any counter-
presumption or evidence special to the case, to be in
fact married. The reason is that such is the common
order of society, and if the parties were not what
they thus hold themselves out as being, they would
be living in the constant violation of decency and of
law. A presumption established by our Code of Civil
Procedure is that a man and a woman deporting
 themselves as husband and wife have entered into a
lawful contract of marriage. (Sec. 334, No.
28) Semper praesumitur pro matrimonio Always
presume marriage.
In the case at bar, the establishment of the fact of marriage
was completed by the testimonies of Adelina, Climaco and
Tecla; the unrebutted fact of the birth within the cohabitation
of Tecla and Eustaquio of four (4) children coupled with the
certificates of the children's birth and baptism; and the
certifications of marriage issued by the parish priest of the
Most Holy Trinity Cathedral of Talibon, Bohol.
WHEREFORE, the Petition is DENIED and the assailed
Decision of the Court of Appeals in CA-G.R. CV No. 79444
is AFFIRMED. The marriage between petitioner Peregrina
Macua Avenido and the deceased Eustaquio Avenido is hereby
declared NULL and VOID. No pronouncement as to costs.
SO ORDERED.
||| (Vda. de Avenido v. Avenido, G.R. No. 173540, [January 22,
2014], 725 PHIL 224-237)

THIRD DIVISION

[G.R. No. 191696. April 10, 2013.]

ROGELIO DANTIS, petitioner, vs. JULIO

MAGHINANG, JR., respondent.

DECISION

MENDOZA, J p:
This is a petition for review on certiorari seeking to reverse
and set aside the January 25, 2010 Decision 1 and the March
23, 2010 Resolution 2 of the Court of Appeals (CA), in CA-G.R.
CV No. 85258, reversing the March 2, 2005 Decision 3 of the
Regional Trial Court, Branch 18, Malolos, Bulacan (RTC), in an
action for quieting of title and recovery of possession with
damages. cAaDHT
The Facts
The case draws its origin from a complaint 4 for quieting of
title and recovery of possession with damages filed by
petitioner Rogelio Dantis (Rogelio) against respondent Julio
Maghinang, Jr. (Julio, Jr.) before the RTC, docketed as Civil Case
No. 280-M-2002. Rogelio alleged that he was the registered
owner of a parcel of land covered by Transfer Certificate of
Title (TCT) No. T-125918, with an area of 5,657 square meters,
located in Sta. Rita, San Miguel, Bulacan; that he acquired
ownership of the property through a deed of extrajudicial
partition of the estate of his deceased father, Emilio
Dantis (Emilio), dated December 22, 1993; that he had been
paying the realty taxes on the said property; that Julio, Jr.
occupied and built a house on a portion of his property without
any right at all; that demands were made upon Julio, Jr. that he
vacate the premises but the same fell on deaf ears; and that
the acts of Julio, Jr. had created a cloud of doubt over his title
and right of possession of his property. He, thus, prayed that
judgment be rendered declaring him to be the true and real
owner of the parcel of land covered by TCT No. T-125918;
ordering Julio, Jr. to deliver the possession of that portion of
the land he was occupying; and directing Julio, Jr. to pay
rentals from October 2000 and attorney's fees of P100,000.00.
He added that he was constrained to institute an ejectment
suit against Julio, Jr. before the Municipal Trial Court of San
Miguel, Bulacan (MTC), but the complaint was dismissed for
lack of jurisdiction and lack of cause of action.
In his Answer, 5 Julio, Jr. denied the material allegations of the
complaint. By way of an affirmative defense, he claimed that
he was the actual owner of the 352 square meters (subject lot)
of the land covered by TCT No. T-125918 where he was living;
that he had been in open and continuous possession of the
property for almost thirty (30) years; the subject lot was once
tenanted by his ancestral relatives until it was sold by
Rogelio's father, Emilio, to his father, Julio Maghinang,
Sr. (Julio, Sr.); that later, he succeeded to the ownership of the
subject lot after his father died on March 10, 1968; and that he
was entitled to a separate registration of the subject lot on the
basis of the documentary evidence of sale and his open and
uninterrupted possession of the property.
As synthesized by the RTC from the respective testimonies of
the principal witnesses, their diametrically opposed positions
are as follows:
Plaintiff Rogelio Dantis testified that he inherited
5,657 square meters of land, identified as Lot 6-D-1
of subdivision plan Psd-031421-054315, located at
Sta. Rita, San Miguel, Bulacan, through an
Extrajudicial Partition of Estate of Emilio Dantis,
executed in December 1993 which land was titled
later on under his name, Rogelio Dantis, married to
Victoria Payawal, as shown by copy of Transfer
Certificate of Title No. T-125918, issued by the
Register of Deeds of Bulacan on September 29, 1998,
declared for taxation purposes as Tax Declaration
with ARP No. C20-22-043-07-046. According to him,
defendant and his predecessor-in-interest built the
house located on said lot. When he first saw it, it was
only a small hut but when he was about 60 years old,
he told defendant not to build a bigger house thereon
because he would need the land and defendant
would have to vacate the land. Plaintiff, however, has
 not been in physical possession of the
premises. HCSEIT
Defendant Julio Maghinang, Jr., presented by plaintiff
as adverse witness, testified that he has no title over
the property he is occupying. He has not paid realty
taxes thereon. He has not paid any rental to anybody.
He is occupying about 352 square meters of the lot.
He presented an affidavit executed on September 3,
1953 by Ignacio Dantis, grandfather of Rogelio Dantis
and the father of Emilio Dantis. The latter was, in
turn, the father of Rogelio Dantis. The affidavit,
according to affiant Ignacio Dantis, alleged that
Emilio Dantis agreed to sell 352 square meters of the
lot to Julio Maghinang on installment. Defendant was
then 11 years old in 1952.
Defendant Julio Maghinang, Jr. likewise testified for
the defendant's case as follows: He owns that house
located at Sta. Rita, San Miguel, Bulacan, on a 352
square meter lot. He could not say that he is the
owner because there is still question about the lot.
He claimed that his father, Julio Maghinang (Sr.),
bought the said lot from the parents of Rogelio
Dantis. He admitted that the affidavit was not signed
by the alleged vendor, Emilio Dantis, the father of
Rogelio Dantis. The receipt he presented was
admittedly a mere photocopy. He spent P50,000.00
as attorney's fees. Since 1953, he has not declared
the property as his nor paid the taxes thereon
because there is a problem. 6
On March 2, 2005, the RTC rendered its decision declaring
Rogelio as the true owner of the entire 5,657-square meter lot
located in Sta. Rita, San Miguel, Bulacan, as evidenced by his
TCT over the same. The RTC did not lend any probative value
on the documentary evidence of sale adduced by Julio, Jr.
consisting of: 1) an affidavit allegedly executed by Ignacio
Dantis (Ignacio), Rogelio's grandfather, whereby said affiant
attested, among others, to the sale of the subject lot made by
his son, Emilio, to Julio, Sr. (Exhibit "3"); 7and 2) an undated
handwritten receipt of initial downpayment in the amount of
P100.00 supposedly issued by Emilio to Julio, Sr. in connection
with the sale of the subject lot(Exhibit "4"). 8 The RTC ruled
that even if these documents were adjudged as competent
evidence, still, they would only serve as proofs that the
purchase price for the subject lot had not yet been completely
paid and, hence, Rogelio was not duty-bound to deliver the
property to Julio, Jr. The RTC found Julio, Jr. to be a mere
possessor by tolerance. The dispositive portion of the RTC
decision reads:
WHEREFORE, Judgment is hereby rendered as
follows:
1. quieting the title and removing whatever cloud
over the title on the parcel of land, with area of
5,647 sq. meters, more or less, located at Sta.
Rita, San Miguel, Bulacan, covered by Transfer
Certificate of Title No. T-125918 issued by the
Register of Deeds of Bulacan in the name of
"Rogelio Dantis, married to Victoria
Payawal"; EaHIDC
2. declaring that Rogelio Dantis, married to Victoria
Payawal, is the true and lawful owner of the
aforementioned real property; and
3. ordering defendant Julio Maghinang, Jr. and all
persons claiming under him to peacefully vacate
the said real property and surrender the
possession thereof to plaintiff or latter's
successors-in-interest.
No pronouncement as to costs in this instance.
SO ORDERED. 9
Julio, Jr. moved for a reconsideration of the March 2, 2005
Decision, but the motion was denied by the RTC in its May 3,
2005 Order. 10 Feeling aggrieved, Julio, Jr. appealed the
decision to the CA.
On January 25, 2010, the CA rendered the assailed decision in
CA-G.R. CV NO. 85258, finding the appeal to be impressed with
merit. It held that Exhibit "4" was an indubitable proof of the
sale of the 352-square meter lot between Emilio and Julio, Sr. It
also ruled that the partial payment of the purchase price,
coupled with the delivery of the res, gave efficacy to the oral
sale and brought it outside the operation of the statute of
frauds. Finally, the court a quo declared that Julio, Jr. and his
predecessors-in-interest had an equitable claim over the
subject lot which imposed on Rogelio and his predecessors-in-
interest a personal duty to convey what had been sold after
full payment of the selling price. The decretal portion of the CA
decision reads:
IN VIEW OF THE FOREGOING, the decision appealed
from is reversed. The heirs of Julio Maghinang Jr. are
declared the owners of the 352-square meter portion
of the lot covered by TCT No. T-125968 where the
residence of defendant Julio Maghinang is located,
and the plaintiff is ordered to reconvey the aforesaid
portion to the aforesaid heirs, subject to partition by
agreement or action to determine the exact metes
and bounds and without prejudice to any legal
remedy that the plaintiff may take with respect to the
unpaid balance of the price.
SO ORDERED. 11
The motion for reconsideration 12 filed by Rogelio was denied
by the CA in its March 23, 2010 Resolution. Unfazed, he filed
this petition for review on certiorari before this Court.
Issues:
The fundamental question for resolution is whether there is a
perfected contract of sale between Emilio and Julio, Sr. The
determination of this issue will settle the rightful ownership of
the subject lot. acHITE
Rogelio submits that Exhibit "3" and Exhibit "4" are devoid of
evidentiary value and, hence, deserve scant consideration. He
stresses that Exhibit "4" is inadmissible in evidence being a
mere photocopy, and the existence and due execution thereof
had not been established. He argues that even if Exhibit "4"
would be considered as competent and admissible evidence,
still, it would not be an adequate proof of the existence of the
alleged oral contract of sale because it failed to provide a
description of the subject lot, including its metes and bounds,
as well as its full price or consideration. 13
Rogelio argues that while reconveyance may be availed of by
the owner of a real property wrongfully included in the
certificate of title of another, the remedy is not obtainable
herein since he is a transferee in good faith, having acquired
the land covered by TCT No. T-125918, through a Deed of
Extrajudicial Partition of Estate. 14 He asserts that he could
not be considered a trustee as he was not privy to Exhibit "4."
In any event, he theorizes that the action for reconveyance on
the ground of implied trust had already prescribed since more
than 10 years had lapsed since the execution of Exhibit "4" in
1953. It is the petitioner's stance that Julio, Jr. did not acquire
ownership over the subject lot by acquisitive prescription
contending that prescription does not lie against a real
property covered by a Torrens title. He opines that his
certificate of title to the subject lot cannot be collaterally
attacked because a Torrens title is indefeasible and must be
respected unless challenged in a direct proceeding. 15
The Court's Ruling
In the case at bench, the CA and the RTC reached different
conclusions on the question of whether or not there was an
oral contract of sale. The RTC ruled that Rogelio Dantis was the
sole and rightful owner of the parcel of land covered by TCT
No. T-125918 and that no oral contract of sale was entered
into between Emilio Dantis and Julio Maghinang, Sr. involving
the 352-square meter portion of the said property. The CA was
of the opposite view. The determination of whether there
existed an oral contract of sale is essentially a question of fact.
In petitions for review under Rule 45, the Court, as a general
rule, does not venture to re-examine the evidence presented
by the contending parties during the trial of the case
considering that it is not a trier of facts and the findings of fact
of the CA are conclusive and binding upon this Court. The rule,
however, admits of several exceptions. One of which is when
the findings of the CA are contrary to those of the trial
court. 16Considering the incongruent factual conclusions of
the CA and the RTC, this Court is constrained to reassess the
factual circumstances of the case and reevaluate them in the
interest of justice. aTCADc
The petition is meritorious.
It is an age-old rule in civil cases that he who alleges a fact
has the burden of proving it and a mere allegation is not
evidence. 17 After carefully sifting through the evidence on
record, the Court finds that Rogelio was able to establish
a prima facie case in his favor tending to show his exclusive
ownership of the parcel of land under TCT No. T-125918 with
an area of 5,657 square meters, which included the 352-
square meter subject lot. From the records, it appears that TCT
No. T-125918 is a derivative of TCT No. T-256228, which
covered a bigger area of land measuring 30,000 square
meters registered in the name of Emilio Dantis; that Emilio
died intestate on November 13, 1952; that Emilio's five heirs,
including Rogelio, executed an extra-judicial partition of estate
on December 22, 1993 and divided among themselves specific
portions of the property covered by TCT No. T-256228, which
were already set apart by metes and bounds; that the land
known as Lot 6-D-1 of the subdivision plan Psd-031421-054315
with an area of 5,657 sq. m. went to Rogelio, the property now
covered by TCT No. T-125918; and that the property was
declared for realty tax purpose in the name of Rogelio for
which a tax declaration was issued in his name; and that the
same had not been transferred to anyone else since its
issuance.
In light of Rogelio's outright denial of the oral sale together
with his insistence of ownership over the subject lot, it
behooved upon Julio, Jr. to contravene the former's claim and
convince the court that he had a valid defense. The burden of
evidence shifted to Julio, Jr. to prove that his father bought the
subject lot from Emilio Dantis. In Jison v. Court of
Appeals, 18 the Court held:
Simply put, he who alleges the affirmative of the
issue has the burden of proof, and upon the plaintiff
in a civil case, the burden of proof never parts.
However, in the course of trial in a civil case, once
plaintiff makes out a prima facie case in his favor, the
duty or the burden of evidence shifts to defendant to
controvert plaintiff's prima facie case, otherwise, a
verdict must be returned in favor of plaintiff.
Moreover, in civil cases, the party having the burden
of proof must produce a preponderance of evidence
thereon, with plaintiff having to rely on the strength
of his own evidence and not upon the weakness of
the defendant's. The concept of "preponderance of
evidence" refers to evidence which is of greater
weight, or more convincing, that which is offered in
opposition to it; at bottom, it means probability of
truth. 19 caHASI
Julio, Jr. failed to discharge this burden. His pieces of evidence,
Exhibit "3" and Exhibit "4," cannot prevail over the array of
documentary and testimonial evidence that were adduced by
Rogelio. The totality of Julio, Jr.'s evidence leaves much to be
desired.
To begin with, Exhibit "3," the affidavit of Ignacio, is hearsay
evidence and, thus, cannot be accorded any evidentiary
weight. Evidence is hearsay when its probative force depends
on the competency and credibility of some persons other than
the witness by whom it is sought to be produced. The
exclusion of hearsay evidence is anchored on three reasons: 1)
absence of cross-examination; 2) absence of demeanor
evidence; and 3) absence of oath. 20
Jurisprudence dictates that an affidavit is merely hearsay
evidence where its affiant/maker did not take the witness
stand. 21 The sworn statement of Ignacio is of this kind. The
affidavit was not identified and its averments were not
affirmed by affiant Ignacio. Accordingly, Exhibit "3" must be
excluded from the judicial proceedings being an inadmissible
hearsay evidence. It cannot be deemed a declaration against
interest for the matter to be considered as an exception to the
hearsay rule because the declarant was not the seller (Emilio),
but his father (Ignacio).
Exhibit "4," on the other hand, is considered secondary
evidence being a mere photocopy which, in this case, cannot
be admitted to prove the contents of the purported undated
handwritten receipt. The best evidence rule requires that the
highest available degree of proof must be produced. For
documentary evidence, the contents of a document are best
proved by the production of the document itself to the
exclusion of secondary or substitutionary evidence, pursuant
to Rule 130, Section 3. 22
A secondary evidence is admissible only upon compliance with
Rule 130, Section 5, which states that: when the original has
been lost or destroyed, or cannot be produced in court, the
offeror, upon proof of its execution or existence and the cause
of its unavailability without bad faith on his part, may prove its
contents by a copy, or by a recital of its contents in some
authentic document, or by the testimony of witnesses in the
order stated. Accordingly, the offeror of the secondary
evidence is burdened to satisfactorily prove the predicates
thereof, namely: (1) the execution or existence of the original;
(2) the loss and destruction of the original or its non-
production in court; and (3) the unavailability of the original is
not due to bad faith on the part of the proponent/offeror. Proof
of the due execution of the document and its subsequent loss
would constitute the basis for the introduction of secondary
evidence. 23 In MCC Industrial Sales Corporation v. Ssangyong
Corporation, 24 it was held that where the missing document
is the foundation of the action, more strictness in proof is
required than where the document is only collaterally involved.
Guided by these norms, the Court holds that Julio, Jr. failed to
prove the due execution of the original of Exhibit "4" as well as
its subsequent loss. A nexus of logically related circumstance
rendered Julio, Jr.'s evidence highly suspect. Also, his
testimony was riddled with improbabilities and contradictions
which tend to erode his credibility and raise doubt on the
veracity of his evidence. CaAcSE
First, the claim of Julio, Jr. that Emilio affixed his signature on
the original of Exhibit "4" in 1953 is highly improbable because
record shows that Emilio died even before that year,
specifically, on November 13, 1952. Excerpts from Julio, Jr.'s
testimony relative to this matter are as follows:
Atty. Vicente Millora (On Cross-examination)
Q: You don't remember how old you were when this
according to you witnessed Emilio Dantis signed this?
A: Eleven years old, Sir.
Q: So that was 1953?
A: Yes, Sir.
Q: And you were then. . .?
 A: I was born October 1942, Sir.
Q: You were eleven (11) years old?
A: Yes, Sir.
Q: And you mean to say that you witnessed the
signing allegedly of the original of Exhibit "4" when
you were eleven (11) years old?
A: Yes, Sir.
Q: And you remember what was signed in this
receipt. From your memory can you tell the title of
this Exhibit "4"?
A: What I can say that it is a Sale, Sir.
Q: So, when you said that you witnessed an alleged
sale you are referring to Exhibit "4"?
A: Yes, Sir. 25 (Emphasis supplied)
Second, Julio, Jr.'s testimony pertinent to the alleged loss of
the original of Exhibit "4" is laden with inconsistencies that
detract from his credibility. His testimony bears the earmarks
of falsehood and, hence, not reliable. Julio, Jr. testified in this
wise:
Atty. Roldan Villacorta (On Direct
examination) ScAIaT
Q: Mr. Witness, I noticed that this document marked
as Exhibit "4" is only a photocopy, where is the
original of this document?
A: The original was with the safekeeping of my
parents because of the lapse of time the original
was misplaced, Sir. 26
The above testimony of Julio, Jr. tends to give the impression
that the original of the document was lost while it was in the
possession of his parents. During cross-examination, however,
he testified that it was lost while it was in his possession.
 Atty. Vicente Millora (On Cross-examination)
Q: . . . Where did you keep that document?
A: I was the one keeping that
document because I live in different places, [the
said] it was lost or misplaced, Sir.
Q: In other words, it was lost while the same was in
your possession?
A: Yes, Sir. 27 (Emphasis supplied)
Still, later, Julio, Jr. claimed that his sister was the one
responsible for the loss of the original of Exhibit "4" after
borrowing the same from him.
Atty. Vicente Millora (On Cross-examination)
Q: So, who is your sister to whom you gave the
original?
A: Benedicta Laya, Sir.
Q: In other words now, you did not lost the
document or the original of Exhibit "4" but you gave
it to your sister, am I correct?
A: I just lent to her the original copy, Sir.
Q: So, you lent this original of Exhibit "4" to your
sister and your sister never returned the same to
you?
A: Yes, Sir, because it was lost, that was the only one
left in her custody. SEHTIc
Interpreter:
Witness referring to the xerox copy.
Atty. Vicente Millora
Q: In other words, it was your sister who lost the
original, is that correct?
 A: Yes, Sir, when I lent the original. 28 (Emphasis
supplied)
The Court also notes the confused narration of Julio, Jr.
regarding the last time he saw the original of Exhibit "4."
Atty. Vicente Millora (On Cross-examination)
Q: And when did you last see the original?
A: When my mother died in 1993 that was the last
time I tried to see the original of the document after
her interment, Sir.
Q: Where did you see this document?
A: From the safekeeping of my mother, Sir. 29
xxx xxx xxx
Q: When did you get this Exhibit "4" now, the
photocopy from your sister?
A: When the interment of my mother in September
1993, Sir.
Q: Now, let us reform. Which one did you get after
the interment of your mother, this Exhibit "4" or the
original?
A: I asked that xerox copy because I have lost the
original and I could not find the same, Sir.
Q: So, from the safe of your mother after her
interment, what used you found and got this Exhibit
"4"?
A: Yes, Sir, from my sister.
Q: So, not from your mother safe? AISHcD
A: The original was taken from the safe of my
mother, Sir.
Q: So after your mother's death you never saw the
original?
 A: I did not see it anymore because the original was
lost before she died, Sir.30 (Underscoring supplied)
Third, it is quite strange that two receipts were prepared for
the initial payment of P100.00 in connection with the sale of
the subject lot. The Court notes that the contents of Exhibit "4"
were similar to those of Annex "A" 31 of Julio, Jr.'s Answer,
dated June 9, 2002. Annex "A," however, was typewritten and
the name of the recipient indicated therein was a certain
Cornelio A. Dantis, whose identity and participation in the
alleged sale was never explained.
Fourth, apart from the lone testimony of Julio, Jr., no other
witness who knew or read Exhibit "4," much less saw it
executed, was presented. In the absence of any shred of
corroborative evidence, the Court cannot help but entertain
doubts on the truthfulness of Julio, Jr.'s naked assertion.
Assuming, in gratia argumenti, that Exhibit "4" is admissible in
evidence, there will still be no valid and perfected oral contract
for failure of Julio, Jr. to prove the concurrence of the essential
requisites of a contract of sale by adequate and competent
evidence.
By the contract of sale, one of the contracting parties
obligates himself to transfer the ownership of, and to deliver, a
determinate thing, and the other to pay therefor a price
certain in money or its equivalent. 32 A contract of sale is a
consensual contract and, thus, is perfected by mere consent
which is manifested by the meeting of the offer and the
acceptance upon the thing and the cause which are to
constitute the contract. 33 Until the contract of sale is
perfected, it cannot, as an independent source of obligation,
serve as a binding juridical relation between the
parties. 34 The essential elements of a contract of sale are: a)
consent or meeting of the minds, that is, consent to transfer
ownership in exchange for the price; b) determinate subject
matter; and c) price certain in money or its equivalent. 35 The
absence of any of the essential elements shall negate the
existence of a perfected contract of sale. 36
Seemingly, Julio, Jr. wanted to prove the sale by a receipt when
it should be the receipt that should further corroborate the
existence of the sale. At best, his testimony only alleges but
does not prove the existence of the verbal agreement. Julio, Jr.
miserably failed to establish by preponderance of evidence
that there was a meeting of the minds of the parties as to the
subject matter and the purchase price. ACaDTH
The chief evidence of Julio, Jr. to substantiate the existence of
the oral contract of sale is Exhibit "4." For a better
understanding and resolution of the issue at hand, Exhibit "4"
is being reproduced here:
Alamin ng sino mang Makababasa
Akong si Emilio Dantis may sapat na Gulang may
asawa naninirahan sa Sta Rita San Miguel Bul. ay
kusang nagsasasay ng sumosunod.
Na ako Tumanggap Kay Julio Maghinang ng P100.00
peso cuartang Pilipino, bilang paunang bayad sa
Lupa niyang nilote sa akin 400 apat na raan mahigit
na metro cudrado.
Testigo
Tumangap,
Emilio a Dantis
A perusal of the above document would readily show that it
does not specify a determinate subject matter. Nowhere does
it provide a description of the property subject of the sale,
including its metes and bounds, as well as its total area. The
Court notes that while Julio, Jr. testified that the land subject of
the sale consisted of 352 square meters, Exhibit "4," however,
states that it's more than 400 square meters. Moreover,
Exhibit "4" does not categorically declare the price certain in
money. Neither does it state the mode of payment of the
purchase price and the period for its payment.
In Swedish Match, AB v. Court of Appeals, 37 the Court ruled
that the manner of payment of the purchase price was an
essential element before a valid and binding contract of sale
could exist. Albeit the Civil Code does not explicitly provide
that the minds of the contracting parties must also meet on
the terms or manner of payment of the price, the same is
needed, otherwise, there is no sale. 38 An agreement anent
the manner of payment goes into the price so much so that a
disagreement on the manner of payment is tantamount to a
failure to agree on the price. 39 Further, in Velasco v. Court of
Appeals,40 where the parties already agreed on the object of
sale and on the purchase price, but not on how and when the
downpayment and the installment payments were to be paid,
this Court ruled:
Such being the situation, it cannot, therefore, be said
that a definite and firm sales agreement between the
parties had been perfected over the lot in question.
Indeed, this Court has already ruled before that a
definite agreement on the manner of payment of the
purchase price is an essential element in the
formation of a binding and enforceable contract of
sale. The fact, therefore, that the petitioners
delivered to the respondent the sum of P10,000.00
as part of the down-payment that they had to pay
cannot be considered as sufficient proof of the
perfection of any purchase and sale agreement
between the parties herein under Art. 1482 of
the new Civil Code, as the petitioners themselves
admit that some essential matter the terms of
payment still had to be mutually covenanted. 41
The CA held that partial performance of the contract of sale
giving of a downpayment coupled with the delivery of the res
took the oral contract out of the scope of the Statute of
Frauds. This conclusion arose from its erroneous finding that
there was a perfected contract of sale. The above disquisition,
however, shows that there was none. There is, therefore, no
basis for the application of the Statute of Frauds. The
application of the Statute of Frauds presupposes the existence
of a perfected contract. 42 As to the delivery of the res, it does
not appear to be a voluntary one pursuant to the purported
sale. If Julio, Jr. happened to be there, it was because his
ancestors tenanted the land. It must be noted that when Julio,
Jr. built his house, Rogelio protested. IcTaAH
WHEREFORE, the petition is GRANTED. The assailed January
25, 2010 Decision and the March 23, 2010 Resolution of the
Court of Appeals, in CA-G.R. CV No. 85258,
areREVERSED and SET ASIDE. The March 2, 2005 Decision of
the Regional Trial Court of Malolos, Bulacan, Branch 18, in Civil
Case No. 280-M-2002, is REINSTATED.
SO ORDERED.
||| (Dantis v. Maghinang, Jr., G.R. No. 191696, [April 10, 2013])

FIRST DIVISION

[G.R. No. 192941. November 13, 2013.]

PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. DANIEL ALCOBER,accused-appellant.

DECISION

LEONARDO-DE CASTRO, J p:
This is an appeal 1 from the Decision 2 of the Court of Appeals
dated May 29, 2009 in CA-G.R. CR.-H.C. No. 00063, which
affirmed with modification the Decision 3 of the Regional Trial
Court (RTC) of Carigara, Leyte finding accused-appellant Daniel
Alcober guilty beyond reasonable doubt of the crime of rape.
Accused-appellant Alcober was charged in an Information
dated February 12, 2001, as follows:
That on or about the 20th day of July, 1999, in the
municipality of Tuga, Province of Leyte, Philippines
and within the jurisdiction of this Honorable Court,
the above-named accused, with deliberate intent and
with lewd designs and by use of force and
intimidation then armed with a long bolo (sundang),
taking advantage of the minority of the victim and
their relationship, the accused being [the] common-
law spouse of the victim's mother, did then and there
wilfully, unlawfully and feloniously had (sic) carnal
knowledge with AAA, 4 against her will and to her
damage and prejudice. 5 DcITHE
Accused-appellant pleaded not guilty to the offense charged.
During the pre-trial, accused-appellant admitted that the
incident happened on the 20th day of July 1999 in the
municipality of Tunga, Leyte, and that he is "the common-law
spouse of the victim's mother." The prosecution furthermore
proposed to have the accused-appellant admit that AAA was a
minor at the time of the incident, but the court insisted that it
be proven with a Birth Certificate. 6
AAA testified that she was around 10 years old and was in
Grade 5 when accused-appellant and her mother started living
together as husband and wife. She considered accused-
appellant to be her father and calls him "Tatay." Her mother is
the one earning for the family, by selling bananas in Carigara,
Leyte. 7
On July 20, 1999, at around 2:00 a.m., AAA was in their house
in Tunga, Leyte. Her mother was away, selling bananas in
Carigara, while her younger siblings were upstairs, sleeping. At
that time, AAA was in second year high school and was
thirteen years old. After working on her school assignment,
AAA cooked rice downstairs in the kitchen. While she was busy
cooking rice, she did not notice the arrival of accused-
appellant, who suddenly embraced her from her back. She
identified accused-appellant as the person who embraced her
since she immediately turned around and the place was
illuminated by a kerosene lamp. AAA resisted and was able to
release herself from accused-appellant's hold. Accused-
appellant unsheathed the long bolo, locally called a sundang,
from the scabbard on his waist and ordered her to go upstairs.
Poking the sundang at AAA's stomach, he then ordered AAA to
take off her shorts, and told her he will kill her, her siblings and
her mother if she does not do as she was told. 8 HcSaAD
AAA complied with accused-appellant's orders. When she was
lying on the floor, already undressed, accused-appellant
placed the sundang beside her on her left side. He took off his
shirt and shorts and went on top of her. AAA did not shout
since accused-appellant threatened to kill them all if she did.
He held her hair with his right hand and touched her private
parts with his left hand. He then "poked" his penis into her
vagina and made a push and pull movement. AAA felt pain.
Accused-appellant kissed her and said "Ah, you're still a
virgin." When accused-appellant was done, he stood and said
"If you will tell this to anybody, I will kill you." 9 cTESIa
AAA did not tell her mother about the incident as she was
afraid accused-appellant will execute his threat to kill them all.
The sexual advances were thereafter repeated every time
AAA's mother sold bananas on Wednesdays and Sundays. 10
On January 8, 2001, accused-appellant ordered AAA to pack
and go with him to Tabontabon, Leyte, threatening once more
to kill her siblings if she does not comply. In Tabontabon,
accused-appellant once again forced AAA to have sex with
him. The following day, AAA's mother, accompanied by police
officers of Tunga, Leyte, arrived, searching for AAA and the
accused-appellant. AAA was finally able to talk to her mother,
which led to AAA's filing a complaint for rape against accused-
appellant. Accused-appellant was arrested a few days later on
January 11, 2001. 11
Dr. Rogelio Gariando, Municipal Health Officer IV of the
Carigara District Hospital, requested a vaginal smear in the
course of his physical examination of AAA. Dr. Gariando
testified that the specimen secured from AAA at around 2:00
p.m. of January 10, 2001 was positive for the presence of
spermatozoa. 12 Medical Technologist II of Carigara District
Hospital, Alicia Adizas, confirmed the finding of Dr.
Gariando. 13
BBB, the mother of AAA, testified that she and accused-
appellant Alcober lived together from 1989 to 2001. BBB and
accused-appellant had three children, who were three, eight
and ten years old, as of her testimony on October 30, 2001.
AAA, however, was her daughter with a previous live-in
partner. AAA was six years old when she and accused-
appellant Alcober started living together. BBB was the one who
supported their family the entire time they lived together,
since accused-appellant was not always gainfully employed.
AAA called accused-appellant "Tatay." 14 TaHIDS
BBB resided in Tunga, Leyte, while AAA was living with BBB's
sister, CCC. The house of CCC was around one kilometer away
from her and accused-appellant's house. AAA, however, was
frequently in BBB's house since she had lunch there and since
it was nearer to her school than CCC's house. BBB
remembered AAA crying on July 20, 1999, but when she asked
AAA, the latter told her that she was merely fondled by
accused-appellant. AAA was 13 years old on July 20, 1999. 15
On January 8, 2001, when BBB learned that accused-appellant
took AAA to Tabontabon, Leyte, she immediately looked for
them in Burauen, Leyte. When she failed to find them there,
she reported the apparent abduction of AAA to the PNP in
Tunga. Together with an uncle of accused-appellant, she
reached Tabontabon at around 9:30 in the morning, but found
only AAA. She asked AAA why she went with accused-
appellant, to which AAA replied that she was threatened by
accused-appellant that he would kill them all. AAA also told
her that she was actually raped by accused-appellant on July
20, 1999. 16
For the defense, Tunga resident Ernesto Davocol testified that
sometime on July 20, 1999, he saw AAA and accused-
appellant, carrying a bag and a bolo, in front of the municipal
cemetery of Tunga, Leyte. They hailed and boarded a jeep
bound for Tacloban. 17
Accused-appellant Alcober testified that on October 20,
1999, 18 at around 2:00 a.m., he was inside their house in
Tunga, Leyte, drinking coffee in the kitchen when AAA
unzipped her shirt and told him that "this is the gift that I am
offering you that you are longing for too long." They then
proceeded to have consensual sexual intercourse. He claimed
that this was the only time that they had sexual intercourse.
On cross-examination, accused-appellant admitted that AAA
sometimes called him Papa and that he did not give her
monetary support since she grew up at her uncle's house.
Accused-appellant clarified that AAA was not in their house on
July 20, 1999 and that their sexual intercourse occurred on
October 20, 1999. Accused-appellant categorically admitted
that he had sex with his 13-year old stepdaughter on October
20, 1999. Accused-appellant further testified on cross that BBB
watched him having sexual intercourse with AAA and that BBB
was crying while watching them. To prove that the sexual
intercourse was consensual, accused-appellant presented in
court what he claimed was the underwear of AAA, alleging
that they agreed to exchange underwear with each
other. 19 HCTaAS
On March 15, 2002, the RTC of Carigara, Leyte rendered its
Decision finding accused-appellant guilty of the crime of rape.
The dispositive portion of the Decision is as follows:
WHEREFORE, premises considered, pursuant to
paragraph 1(a), Art. 266-A and the second paragraph
of Art. 266-B (Rape Law of 1997, R.A. No. 8353) of
the Revised Penal Code as amended, and further
amended by R.A. No. 7659, (The Death Penalty Law),
the Court found DANIEL ALCOBER, GUILTY beyond
reasonable doubt of the crime of Rape and sentenced
to suffer the maximum penalty of DEATH, and
indemnify [AAA] the amount of Seventy[-]Five
(P75,000.00) Thousand Pesos and pay moral
damages in the amount of Fifty Thousand
(P50,000.00) Pesos and pay the cost. 20
On May 29, 2009, the Court of Appeals affirmed the RTC
Decision with several modifications:
WHEREFORE, in view of the foregoing premises, the
assailed Decision of the Regional Trial Court, Branch
13 in Carigara, Leyte in Criminal Case No. 4025 is
hereby AFFIRMED with MODIFICATIONS. Finding
accused-appellant Daniel Alcober GUILTY beyond
reasonable doubt as principal of the crime of rape
qualified by the use of a deadly weapon, the Court
sentences him to reclusion perpetua. Accused-
appellant is further ordered to pay the following
sums: Php75,000 as civil indemnity; Php75,000 as
moral damages; and Php25,000 as exemplary
damages. Costs against accused-appellant. 21
Accused-appellant appeals to this Court with the following
Assignment of Errors: CDTHSI
I
 THE COURT A QUO GRAVELY ERRED IN COMPLETELY
IGNORING THE SWEETHEART THEORY INTERPOSED
BY ACCUSED-APPELLANT.
II
THE COURT A QUO GRAVELY ERRED IN FINDING
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF RAPE. 22
Accused-appellant asserts that AAA's testimony that the
sexual intercourse between them was not consensual is
"patently incredible." According to accused-appellant, AAA
could have escaped after she was raped for the first time on
July 20, 1999. Since AAA was already residing in her aunt's
house, she should never have returned to BBB and accused-
appellant's house in order to prevent the repeated sexual
intercourse after July 20, 1999 and the before the incident in
Tabontabon. 23 Accused-appellant furthermore claim that the
delay in revealing her alleged sexual ordeals from July 20,
1999 up to January 10, 2001 creates serious doubts as to her
contention that she was raped. 24
We must emphasize that when the accused in a rape case
claims, as in the case at bar, that the sexual intercourse
between him and the complainant was consensual, the burden
of evidence shifts to him, such that he is now enjoined to
adduce sufficient evidence to prove the relationship. Being an
affirmative defense, it must be established with convincing
evidence, such as by some documentary and/or other
evidence like mementos, love letters, notes, pictures and the
like. 25 Thus, in People v. Mirandilla, Jr., 26we held:
The sweetheart theory as a defense, however,
necessarily admits carnal knowledge, the first
element of rape. Effectively, it leaves the prosecution
the burden to prove only force or intimidation, the
coupling element of rape. . . . . ACDTcE
 This admission makes the sweetheart theory more
difficult to defend, for it is not only an affirmative
defense that needs convincing proof; after the
prosecution has successfully established a prima
facie case, the burden of evidence is shifted to the
accused, who has to adduce evidence that the
intercourse was consensual. (Citations omitted.)
Other than his self-serving testimony, however, accused-
appellant failed to adduce evidence of his supposed
relationship with AAA. The testimony of Davocol as regards
seeing AAA and accused-appellant on July 20, 1999 boarding a
jeep bound for Tacloban does not in any way suggest a
romantic or sexual relationship between them. On the other
hand, we are convinced that the sordid version of facts
presented by accused-appellant is nothing but a depraved
concoction by a very twisted and obnoxious imagination.
Accused-appellant's tale of being seduced by his 13-year old
stepdaughter who calls him "Tatay" or "Papa," and having
sexual intercourse with her while her mother was watching
and crying is not only nauseatingly repulsive but is likewise
utterly incredible. It is unthinkable for BBB, who helped AAA
file the complaint and testified against accused-appellant, to
just passively endure such an outrage happening before her
very eyes. The trial court, which observed the demeanor of
AAA, BBB and the accused-appellant on the witness stand, did
not find accused-appellant's account plausible, and instead
gave full faith and credence to the testimonies of AAA and
BBB. The trial court, in fact, described accused-appellant's
demeanor as boastful and his narration as a make-believe
story: cHAIES
While at the witness stand, the accused boastfully
testified and took out from the back pocket of his
pants a panty of a woman which according to him
was given to him by [AAA] after their sexual
intercourse to which he exchanged it with his own
brief as a proof that [AAA] enjoyed having sexual
intercourse with him; viz.:
xxx xxx xxx
PROS. MERIN:
Q So, you are telling this court that [AAA] was
enjoying?
A Yes, sir, and her panty is even here. I brought this
to the Court as evidence.
Q What was then in your mind that you would make
your own stepdaughter without a panty after you
had sex with her? What was in your mind?
A Because this was given to me by her and we
exchanged our underwear, she gave me her
panty and I gave her my brief.
Q And it was in the presence of her mother?
A Yes sir. TSN [pp]. 10-11. March 5, 2002.)
This make-believe story of the sex escapade of
accused Daniel Alcober and the minor [AAA],
conveying to the court that the 13 year old [AAA]
enjoyed the morbid situation that [befell] on her life
is unavailing and deserves no credence. The trauma,
the shame and the embarrassment and the public
humiliation to which [accused-appellant] has forced
the minor child to stop her studies, denying her the
proper education and a bright future, all because of
the [insatiable] beastful lust of her stepfather who
virtually reduced her to a sex slave, a pawn for
almost two (2) years, who cannot do anything but
obey the whims and caprices of the accused Alcober
until he was apprehended and formally charged in
court on March 21, 2001. . . . . 27 ICHcaD
Accused-appellant's incredulous testimony appears even more
unconvincing in contrast to the believable account of AAA of
the incident on July 20, 1999:
Q: After you noticed that it was your stepfather who
embraced you, what else transpired, if any?
A: I resisted, but at that time he was always bringing
with him a long bolo, locally known
as "sundang." He took it off from the scabbard.
Q: You mean when he embraced you, he was already
holding a long bolo?
A: It was still tucked at his waist, together with the
scabbard.
Q: You said that you resisted. When was that time
when he unsheathed his bolo then tucked on his
waist?
A: When I resisted.
xxx xxx xxx
Q: When you went upstairs, what next transpired, if
any?
A: He ordered me to take off my short pants.
Q: What was then your attire that time? DCTHaS
A: I was then wearing shorts and t-shirt.
Q: How about that bolo, what did the accused do with
that bolo?
A: It was poked on me.
Q: Where, what portion of your body?
A: Towards my stomach.
Q: Did you comply with his order that you would have
to undress yourself and took your attire?
A: Yes sir.
Q: Why did you have to comply to that?
A: Because, he told me that if I will not follow him, he
will kill me, my brothers and sisters and my
mother.
xxx xxx xxx
Q: After you were already undressed, what next
transpired, if any?
A: That was the time that he placed his long
bolo "sundang" beside me on my left side.
Q: You mean, you were already lying on the floor?
A: Yes sir. ITAaHc
Q: Now, after he placed that bolo beside you, what
next transpired, if any?
A: He took off his t-shirt and shorts and thereafter, he
placed himself on top of me.
Q: Did you not make any shout that which you would
be heard?
A: I did not shout, because he told me not to shout or
make any noise.
Q: Did you comply to such order?
A: Yes sir. EICScD
Q: Why?
A: Because, he threatened me that if I shout, he will
kill me, all of us.
Q: After he placed himself on top of you, what did the
accused do, if any?
A: He held every part of my body.
xxx xxx xxx
Q: What portion of your body was touched by the
accused?
A: My breast.
Q: What else, if any?
A: Until down.
Q: You mean, to include your vagina?
A: Yes sir.
Q: How did he touch your breast, your vagina and
other extremities of your body. Describe that.
A: While he places himself on top of me, his other
hands was used in touching other parts of my
body.
Q: What hand was touching the other parts of your
body?
A: His right hand. aSTAHD
Q: And where was his left hand, then?
A: It was on my hair.
xxx xxx xxx
Q: After he did that touching of your private parts,
your breast, vagina and touching your hair
gently, what transpired next?
A: He took my womanhood.
Q: How?
A: He poked his penis to my vagina.
xxx xxx xxx
Q: After the accused poked his penis to your vagina,
what did the accused then do after poking his
penis to your vagina?
A: He did the act of pulling and pushing.
 xxx xxx xxx
Q: When this penis of the accused was placed in your
vagina as you earlier testified, what else did you
feel?
A: I felt the pain. ACcISa
Q: After he was through with this push and pull
movement, what did the accused do next, after
he caressed you and told you that statement
that you are still a virgin?
A: He stood up and said this things, "if you will tell
this to anybody, I will kill you."
Q: Did you tell your mother of what the accused did
to you?
A: I did not.
Q: Why?
A: Because I was afraid he will execute his threats to
kill us all. 28
Contrary to the assertions of accused-appellant, the fact that
AAA was not able to escape when she had the opportunity to
do so, her continued visit to their home after the incident, and
her delay in filing the complaint does not at all contradict her
credibility. As discussed by the Court of Appeals, when a rape
victim is paralyzed with fear, she cannot be expected to think
and act coherently. Her failure to take advantage of an
opportunity to escape does not automatically vitiate the
credibility of her account. 29 Similarly, inPeople v.
Lazaro, 30 we propounded on the impropriety of judging the
actions of child rape victims by the norms of behavior that can
be expected from adults under similar circumstances: cDHCAE
It is not uncommon for a young girl to conceal for
some time the assault on her virtue. Her initial
hesitation may be due to her youth and the
 molester's threat against her. Besides, rape victims,
especially child victims, should not be expected to
act the way mature individuals would when placed
in such a situation. It is not proper to judge the
actions of children who have undergone traumatic
experience by the norms of behavior expected from
adults under similar circumstances. . . . . It is, thus,
unrealistic to expect uniform reactions from them.
Certainly, the Court has not laid down any rule on
how a rape victim should behave immediately after
she has been violated. This experience is relative
and may be dealt with in any way by the victim
depending on the circumstances, but her credibility
should not be tainted with any modicum of doubt.
Indeed, different people react differently to a given
stimulus or type of situation, and there is no
standard form of behavioral response when one is
confronted with a strange or startling or frightful
experience. . . . . (Citations omitted.)
Indeed, AAA's explanation for the delay in reporting the crime
is more than adequate: cCSEaA
Q: Would you kindly tell the Court the reason why
you did not immediately file a case against your
stepfather on July 20, 1999?
A: Because I was afraid of his threat that he will kill
my mother, my brother and sisters including me.
Q: When was this threat by the way?
A: At the time when I was already at the kitchen.
Q: You mean this date of July 20, 1999?
A: Yes, sir. 31
In all, we do not find sufficient ground to overturn the guilty
verdict rendered by the lower courts. We note, however, that
the trial court and the Court of Appeals differed in the penalty
imposed and in their appreciation of aggravating
circumstances. We proceed to pass upon these matters.
The trial court imposed the death penalty upon accused-
appellant on the basis of the fifth paragraph, number 1, of
Article 266-B of the Revised Penal Code, which provides:
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,
stepparent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common
law spouse of the parent of the victim[.] DaEcTC
The Court of Appeals, however, found the fifth paragraph of
Article 266-B inapplicable. According to the appellate court,
although it is undisputed that accused-appellant is the
common-law spouse of the victim's mother, the records are
bereft of independent evidence to prove that AAA is a minor,
apart from the testimonies of AAA and her mother. 32
We disagree.
In People v. Pruna, 33 the Court established the guidelines in
appreciating age, either as an element of the crime or as a
qualifying circumstance, as follows:
1. The best evidence to prove the age of the
offended party is an original or certified true copy of
the certificate of live birth of such party.
2. In the absence of a certificate of live birth, similar
authentic documents such as baptismal certificate
and school records which show the date of birth of
the victim would suffice to prove age.
3. If the certificate of live birth or authentic
document is shown to have been lost or destroyed or
 otherwise unavailable, the testimony, if clear and
credible, of the victim's mother or a member of
the family either by affinity or consanguinity who is
qualified to testify on matters respecting
pedigree such as the exact age or date of birth
of the offended party pursuant to Section 40, Rule
130 of the Rules on Evidence shall be sufficient under
the following circumstances:
a. If the victim is alleged to be below 3 years of
age and what is sought to be proved is that she
is less than 7 years old; DCIEac
b. If the victim is alleged to be below 7 years of
age and what is sought to be proved is that she
is less than 12 years old;
c. If the victim is alleged to be below 12 years of
age and what is sought to be proved is that she
is less than 18 years old. TaDSHC
4. In the absence of a certificate of live birth,
authentic document, or the testimony of the
victim's mother or relatives concerning the
victim's age,the complainant's testimony will
suffice provided that it is expressly and clearly
admitted by the accused.
5. It is the prosecution that has the burden of proving
the age of the offended party. The failure of the
accused to object to the testimonial evidence
regarding age shall not be taken against him.
6. The trial court should always make a categorical
finding as to the age of the victim. (Emphases
supplied, citation omitted.)
In the case at bar, no birth or baptismal certificate or school
record showing the date of birth of AAA was
presented. AHCTEa
Pursuant to number 4 of the guidelines, however, in the
absence of the foregoing documents (certificate of live birth or
authentic document), the complainant's testimony will suffice
provided that it is expressly and clearly admitted by the
accused. In the case at bar, AAA testified that she was 13
years old on July 20, 1999 and that her birthday was in
February. 34 Accused-appellant, who insists that the incident
occurred on October 20, 1999, expressly and clearly admitted
that AAA was still 13 years old on that date, which was three
months later:
Q: I am referring to October 20, 1999 when she
accompanied her mother[,] you made sex with
your stepdaughter on October 20, 1999 when
she was still 13 years of age?
A: Yes, sir. 35
Several more questions were propounded to accused-appellant
to ascertain that he was aware of AAA's minority at the time of
the sexual intercourse, and accused-appellant's answers
plainly showed that he was fully cognizant of this fact:
Q: But you would admit that you have sexual
intercourse with [AAA] while she was still 13
years old?
A: No, sir, it was her uncle who raped her and that
was according to [AAA] on that date of July 20,
1999.
Q: I am referring to October 20, 1999 when she
accompanied her mother you [had] sex with your
stepdaughter on October 20, 1999 when she was
still 13 years of age?
A: Yes, sir.
Q: Is it not a conscious revolting act in your part to
have sex with your stepdaughter who was still a
 minor when your wife was in the premises where
you live? TcCSIa
A: The mother of [AAA] knew that sexual intercourse
happened to us on that early morning.
Q: You mean to tell this Court that you made sex with
a minor daughter of your common-law-wife in
her presence?
A: Yes, sir she was by the door.
Q: You mean, she was looking [at] both of you having
sex?
A: Yes, sir.
Q: You would like this Court to believe that your own
wife was there looking at you having sex with her
daughter, her eldest minor daughter?
A: It depends to the Court if the Court will believe to
that I have stated but that is the truth. 36
Furthermore, BBB categorically testified that AAA was 13 years
old at the time material to this case. To be sure, there is no
disparity between the evidence for the prosecution and the
defense on the point that the accused had carnal knowledge of
AAA when she was only 13 years old.
Taking into account that the minority of the victim and
accused-appellant's being the common-law spouse of the
victim's mother, this Court finds it proper to appreciate this
qualifying circumstance under the fifth paragraph, item
number 1, Article 266-B of theRevised Penal Code. HaTISE
The Court of Appeals also made several modifications with
regard to the appreciation of aggravating circumstances. The
trial court considered the aggravating circumstances of
dwelling, use of weapon, force and intimidation, nighttime and
ignominy. 37 The Court of Appeals correctly modified the RTC
Decision in finding the appreciation of force and intimidation
improper for being an element of the crime of rape. The Court
of Appeals likewise correctly reversed the consideration of
dwelling, nocturnity and ignominy as these circumstances
were not alleged in the Information. Furthermore, this Court
observes that nocturnity cannot be appreciated in this case
since there was no showing that it was deliberately sought to
prevent the accused from being recognized or to ensure his
escape. 38
The Court of Appeals, however, affirmed the appreciation of
the aggravating circumstance of use of a deadly weapon. We
agree with this assessment. As discussed by the Court of
Appeals, this circumstance was sufficiently alleged in the
Information and proven during the trial through AAA's credible
testimony, which clearly showed that thesundang was used to
make the victim submit to the will of the offender.
The proper penalty for qualified rape is reclusion
perpetua pursuant to Republic Act No. 9346 which prohibited
the imposition of the death penalty. Consistent with prevailing
jurisprudence, we modify the amount of exemplary damages
for qualified rape by increasing the same from Twenty-Five
Thousand Pesos (P25,000.00) to Thirty Thousand Pesos
(P30,000.00) following established jurisprudence. 39 LLpr
WHEREFORE, the Decision of the Court of Appeals dated May
29, 2009 in CA-G.R. CR.-H.C. No. 00063 which affirmed with
modifications the finding of the Regional Trial Court of
Carigara, Leyte finding accused-appellant Daniel Alcober guilty
beyond reasonable doubt of the crime of rape, is
further MODIFIED as follows: (1) accused-appellant Alcober is
hereby found GUILTY of the crime of rape qualified by
minority and relationship under number 1, fifth paragraph,
Article 266-B of the Revised Penal Code for which the penalty
of reclusion perpetua without eligibility for parole is imposed;
(2) aside from the civil indemnity of P75,000.00 and moral
damages of P75,000.00, the liability of accused-appellant for
exemplary damages is hereby increased to P30,000.00; and
(3) accused-appellant Alcober is likewise ORDERED to pay
AAA interest at the legal rate of six percent (6%) per annum in
all amounts of damages awarded, commencing from the date
of finality of this Decision until fully paid.
SO ORDERED
||| (People v. Alcober, G.R. No. 192941, [November 13, 2013],
721 PHIL 217-237)

SECOND DIVISION

[G.R. No. 145842. June 27, 2008.]

EDSA SHANGRI-LA HOTEL AND RESORT, INC.,

RUFO B. COLAYCO, RUFINO L. SAMANIEGO,
KUOK KHOON CHEN, and KUOK KHOON
TSEN,petitioners, vs. BF
CORPORATION, respondent.

[G.R. No. 145873. June 27, 2008.]

CYNTHIA ROXAS-DEL CASTILLO, petitioner, vs. BF

CORPORATION,respondent.

DECISION

VELASCO, JR., J p:
Before us are these two (2) consolidated petitions for review
under Rule 45 to nullify certain issuances of the Court of
Appeals (CA). AEIDTc
In the first petition, docketed as G.R. No. 145842,
petitioners Edsa Shangri-la Hotel and Resort, Inc.
(ESHRI), Rufo B. Colayco, Rufino L. Samaniego, Kuok
Khoon Chen, and Kuok Khoon Tsen assail the
Decision 1 dated November 12, 1999 of the CA in CA-
G.R. CV No. 57399, affirming the Decision 2 dated
September 23, 1996 of the Regional Trial Court (RTC),
Branch 162 in Pasig City in Civil Case No. 63435 that
ordered them to pay jointly and severally respondent
BF Corporation (BF) a sum of money with interests and
damages. They also assail the CA Resolution dated
October 25, 2000 which, apart from setting aside an
earlier Resolution 3 of August 13, 1999 granting
ESHRI's application for restitution and damages against
bond, affirmed the aforesaid September 23, 1996 RTC
Decision.
In the second petition, docketed as G.R. No. 145873,
petitioner Cynthia Roxas-del Castillo also assails the
aforementioned CA Decision of November 12, 1999 insofar at
it adjudged her jointly and severally liable with ESHRI, et al. to
pay the monetary award decreed in the RTC Decision. cHCSDa
Both petitions stemmed from a construction contract
denominated as Agreement for the Execution of Builder's
Work for the EDSA Shangri-la Hotel Project 4 that ESHRI and
BF executed for the construction of the EDSA Shangri-la Hotel
starting May 1, 1991. Among other things, the contract
stipulated for the payment of the contract price on the basis of
the work accomplished as described in the monthly progress
billings. Under this arrangement, BF shall submit a monthly
progress billing to ESHRI which would then re-measure the
work accomplished and prepare a Progress Payment Certificate
for that month's progress billing. 5
In a memorandum-letter dated August 16, 1991 to BF, ESHRI
laid out the collection procedure BF was to follow, to wit: (1)
submission of the progress billing to ESHRI's Engineering
Department; (2) following-up of the preparation of the
Progress Payment Certificate with the Head of the Quantity
Surveying Department; and (3) following-up of the release of
the payment with one Evelyn San Pascual. BF adhered to the
procedures agreed upon in all its billings for the period from
May 1, 1991 to June 30, 1992, submitting for the purpose the
required Builders Work Summary, the monthly progress
billings, including an evaluation of the work in accordance with
the Project Manager's Instructions (PMIs) and the detailed
valuations contained in the Work Variation Orders (WVOs) for
final re-measurement under the PMIs. BF said that the values
of the WVOs were contained in the progress billings under the
section "Change Orders". 6 ETDSAc
From May 1, 1991 to June 30, 1992, BF submitted a total of 19
progress billings following the procedure agreed upon. Based
on Progress Billing Nos. 1 to 13, ESHRI paid BF
PhP86,501,834.05. 7
According to BF, however, ESHRI, for Progress Billing Nos. 14
to 19, did not re-measure the work done, did not prepare the
Progress Payment Certificates, let alone remit payment for the
inclusive periods covered. In this regard, BF claimed having
been misled into working continuously on the project by ESHRI
which gave the assurance about the Progress Payment
Certificates already being processed.
After several futile attempts to collect the unpaid billings, BF
filed, on July 26, 1993, before the RTC a suit for a sum of
money and damages. EcTIDA
In its defense, ESHRI claimed having overpaid BF for Progress
Billing Nos. 1 to 13 and, by way of counterclaim with damages,
asked that BF be ordered to refund the excess payments.
ESHRI also charged BF with incurring delay and turning up with
inferior work accomplishment.
The RTC found for BF
On September 23, 1996, the RTC, on the main finding that BF,
as plaintiff a quo, is entitled to the payment of its claim
covered by Progress Billing Nos. 14 to 19 and to the retention
money corresponding to Progress Billing Nos. 1 to 11, with
interest in both instances, rendered judgment for BF.
The fallo of the RTC Decision reads:
WHEREFORE, defendants [EHSRI], Ru[f]o B. Colayco,
Rufino L. Samaniego, Cynthia del Castillo, Kuok
Khoon Chen, and Kuok Khoon Tsen, are jointly and
severally hereby ordered to: DTISaH
1. Pay plaintiff the sum of P24,780,490.00
representing unpaid construction work
accomplishments under plaintiff's Progress
Billings Nos. 14-19;
2. Return to plaintiff the retention sum of
P5,810,000.00;
3. Pay legal interest on the amount of
P24,780,490.80 representing the construction
work accomplishments under Progress Billings
Nos. 14-19 and on the amount of P5,810,000.00
representing the retention sum from date of
demand until their full Payment;
4. Pay plaintiff P1,000,000.00 as moral damages,
P1,000,000.00 as exemplary damages,
P1,000,000.00 as attorney's fees, and cost of the
suit. 8 cASIED
According to the RTC, ESHRI's refusal to pay BF's valid claims
constituted evident bad faith entitling BF to moral damages
and attorney's fees.
ESHRI subsequently moved for reconsideration, but the motion
was denied by the RTC, prompting ESHRI to appeal to the CA
in CA-G.R. CV No. 57399.
Pending the resolution of CA-G.R. CV No. 57399, the following
events and/or incidents transpired:
(1) The trial court, by Order dated January 21, 1997, granted
BF's motion for execution pending appeal. ESHRI assailed this
order before the CA via a petition for certiorari,docketed
as CA-G.R. SP No. 43187. 9 Meanwhile, the branch sheriff
garnished from ESHRI's bank account in the Philippine National
Bank (PNB) the amount of PhP35 million.DAETcC
(2) On March 7, 1997, the CA issued in CA-G.R. SP No. 43187 a
writ of preliminary injunction enjoining the trial court from
carrying out its January 21, 1997 Order upon ESHRI's posting
of a PhP1 million bond. In a supplemental resolution issued on
the same day, the CA issued a writ of preliminary mandatory
injunction directing the trial court judge and/or his branch
sheriff acting under him (a) to lift all the garnishments and
levy made under the enjoined order of execution pending
appeal; (b) to immediately return the garnished deposits to
PNB instead of delivering the same to ESHRI; and (c) if the
garnished deposits have been delivered to BF, the latter shall
return the same to ESHRI's deposit account.
(3) By a Decision dated June 30, 1997 in CA-G.R. SP No. 43187,
the CA set aside the trial court's January 21, 1997 Order. The
CA would later deny BF's motion for reconsideration. TASCEc
(4) Aggrieved, BF filed before this Court a petition for review of
the CA Decision, docketed as G.R. No. 132655. 10 On August
11, 1998, the Court affirmed the assailed decision of the CA
with the modification that the recovery of ESHRI's garnished
deposits shall be against BF's bond. 11
We denied the motions for reconsideration of ESHRI and BF.
(5) Forthwith, ESHRI filed, and the CA by Resolution of August
13, 1999 granted, an application for restitution or damages
against BF's bond. Consequently, BF and Stronghold Insurance
Co., Inc., the bonding company, filed separate motions for
reconsideration.
On November 12, 1999, in CA-G.R. CV No. 57399, the CA
rendered a Decision resolving (1) the aforesaid motions of BF
and its surety and (2) herein petitioners' appeal from the trial
court's Decision dated September 23, 1996. This November
12, 1999 Decision, finding for BF and now assailed in these
separate recourses, dispositively reads: aCTADI
WHEREFORE, premises considered, the decision
appealed from is AFFIRMED in toto. This Court's
Resolution dated 13 August 1999 is reconsidered and
set aside, and defendants-appellants' application for
restitution is denied for lack of merit.
SO ORDERED. 12
The CA predicated its ruling on the interplay of two main
reasons. First, the issues the parties raised in their respective
briefs were, for the most part, factual and evidentiary. Thus,
there is no reason to disturb the case disposition of the RTC,
inclusive of its award of damages and attorney's fees and the
reasons underpinning the award. Second, BF had sufficiently
established its case by preponderance of evidence. Part of
what it had sufficiently proven relates to ESHRI being remiss in
its obligation to re-measure BF's later work accomplishments
and pay the same. On the other hand, ESHRI had failed to
prove the basis of its disclaimer from liability, such as its
allegation on the defective work accomplished by BF. SADECI
Apropos ESHRI's entitlement to the remedy of restitution or
reparation arising from the execution of the RTC Decision
pending appeal, the CA held that such remedy may
peremptorily be allowed only if the executed judgment is
reversed, a situation not obtaining in this case.
Following the denial by the CA, per its Resolution 13 dated
October 25, 2000, of their motion for reconsideration,
petitioners are now before the Court, petitioner del Castillo
opting, however, to file a separate recourse.
G.R. No. 145842
In G.R. No. 145842, petitioners ESHRI, et al. raise the following
issues for our consideration: TaCDcE
I. Whether or not the [CA] committed grave abuse of
discretion in disregarding issues of law raised by
petitioners in their appeal [particularly in admitting in
evidence photocopies of Progress Billing Nos. 14 to
19, PMIs and WVOs].
II. Whether or not the [CA] committed grave abuse of
discretion in not holding respondent guilty of delay in
the performance of its obligations and, hence, liable
for liquidated damages [in view that respondent is
guilty of delay and that its works were defective].

III. Whether or not the [CA] committed grave abuse

of discretion in finding petitioners guilty of malice
and evidence bad faith, and in awarding moral and
exemplary damages and attorney's fees to
respondent.
IV. Whether or not the [CA] erred in setting aside its
Resolution dated August 13, 2000. 14 HSCAIT
The petition has no merit.
Prefatorily, it should be stressed that the second and third
issues tendered relate to the correctness of the CA's factual
determinations, specifically on whether or not BF was in delay
and had come up with defective works, and whether or not
petitioners were guilty of malice and bad faith. It is basic that
in an appeal by certiorari under Rule 45, only questions of law
may be presented by the parties and reviewed by the
Court. 15 Just as basic is the rule that factual findings of the
CA, affirmatory of that of the trial court, are final and
conclusive on the Court and may not be reviewed on appeal,
except for the most compelling of reasons, such as when: (1)
the conclusion is grounded on speculations, surmises, or
conjectures; (2) the inference is manifestly mistaken, absurd,
or impossible; (3) there is grave abuse of discretion; (4) the
judgment is based on a misapprehension of facts; (5) the
findings of fact are conflicting; (6) such findings are contrary to
the admissions of both parties; and (7) the CA manifestly
overlooked certain relevant evidence and undisputed facts,
that, if properly considered, would justify a different
conclusion. 16 DEIHSa
In our review of this case, we find that none of the above
exceptions obtains. Accordingly, the factual findings of the trial
court, as affirmed by the CA, that there was delay on the part
of ESHRI, that there was no proof that BF's work was defective,
and that petitioners were guilty of malice and bad faith, ought
to be affirmed.
Admissibility of Photocopies of Progress Billing Nos.
14 to 19, PMIs and WVOs
Petitioners fault the CA, and necessarily the trial court, on the
matter of the admission in evidence of the photocopies of
Progress Billing Nos. 14 to 19 and the complementing PMIs
and the WVOs. According to petitioners, BF, before being
allowed to adduce in evidence the photocopies adverted to,
ought to have laid the basis for the presentation of the
photocopies as secondary evidence, conformably to the best
evidence rule.
Respondent BF, on the other hand, avers having complied with
the laying-the-basis requirement. Defending the action of the
courts below in admitting into evidence the photocopies of the
documents aforementioned, BF explained that it could not
present the original of the documents since they were in the
possession of ESHRI which refused to hand them over to BF
despite requests. cSEaDA
We agree with BF. The only actual rule that the term "best
evidence" denotes is the rule requiring that the original of a
writing must, as a general proposition, be produced 17 and
secondary evidence of its contents is not admissible except
where the original cannot be had. Rule 130, Section 3 of the
Rules of Court enunciates the best evidence rule:
SEC. 3. Original document must be produced;
exceptions. When the subject of inquiry is the
contents of a document, no evidence shall be
admissible other than the original document itself,
except in the following cases:
(a) When the original has been lost or destroyed,
or cannot be produced in court, without bad
faith on the part of the offeror; EaHcDS
(b) When the original is in the custody or
under the control of the party against
whom the evidence is offered, and the
latter fails to produce it after
reasonable notice; (Emphasis added.)
Complementing the above provision is Sec. 6 of Rule 130,
which reads:
SEC. 6. When original document is in adverse party's
custody or control. If the document is in the
custody or under control of the adverse party, he
must have reasonable notice to produce it. If after
such notice and after satisfactory proof of its
existence, he fails to produce the document,
secondary evidence may be presented as in the case
of loss. CScTDE
Secondary evidence of the contents of a written instrument or
document refers to evidence other than the original
instrument or document itself. 18 A party may present
secondary evidence of the contents of a writing not only when
the original is lost or destroyed, but also when it is in the
custody or under the control of the adverse party. In either
instance, however, certain explanations must be given before
a party can resort to secondary evidence.
In our view, the trial court correctly allowed the presentation of
the photocopied documents in question as secondary
evidence. Any suggestion that BF failed to lay the required
basis for presenting the photocopies of Progress Billing Nos. 14
to 19 instead of their originals has to be dismissed. The
stenographic notes of the following exchanges between Atty.
Andres and Atty. Autea, counsel for BF and ESHRI,
respectively, reveal that BF had complied with the
requirements: IDScTE
ATTY. ANDRES:
During the previous hearing of this case, your Honor,
likewise, the witness testified that certain
exhibits namely, the Progress Payment
Certificates and the Progress Billings the
originals of these documents were transmitted to
ESHRI, all the originals are in the possession of
ESHRI since these are internal documents and I
am referring specifically to the Progress Payment
Certificates. We requested your Honor, that
in order that plaintiff [BF] be allowed to
present secondary original, that opposing
counsel first be given opportunity to
present the originals which are in their
possession. May we know if they have brought
the originals and whether they will present the
originals in court, Your Honor. (Emphasis added).
ATTY. AUTEA:
We have already informed our client about the
situation, your Honor, that it has been claimed
by plaintiff that some of the originals are in their
possession and our client assured that, they will
try to check. Unfortunately, we have not heard
from our client, Your Honor.
Four factual premises are readily deducible from the above
exchanges, to wit: (1) the existence of the original documents
which ESHRI had possession of; (2) a request was made on
ESHRI to produce the documents; (3) ESHRI was afforded
sufficient time to produce them; and (4) ESHRI was not
inclined to produce them. IDcAHT
Clearly, the circumstances obtaining in this case fall under the
exception under Sec. 3 (b) of Rule 130. In other words, the
conditions sine qua non for the presentation and reception of
the photocopies of the original document as secondary
evidence have been met. These are: (1) there is proof of the
original document's execution or existence; (2) there is proof
of the cause of the original document's unavailability; and (3)
the offeror is in good faith. 19 While perhaps not on all fours
because it involved a check, what the Court said in Magdayao
v. People is very much apt, thus:
. . . To warrant the admissibility of secondary
evidence when the original of a writing is in the
custody or control of the adverse party, Section 6 of
Rule 130 provides that the adverse party must be
given reasonable notice, that he fails or refuses to
produce the same in court and that the offeror offers
satisfactory proof of its existence. EScaIT
xxx xxx xxx
The mere fact that the original of the writing is in the
custody or control of the party against whom it is
offered does not warrant the admission of secondary
evidence. The offeror must prove that he has done all
in his power to secure the best evidence by giving
notice to the said party to produce the document.
The notice may be in the form of a motion for the
production of the original or made in open court in
the presence of the adverse party or via a subpoena
duces tecum,provided that the party in custody of
 the original has sufficient time to produce the
same. When such party has the original of the
writing and does not voluntarily offer to
produce it or refuses to produce it, secondary
evidence may be admitted. 20 (Emphasis
supplied).
On the Restitution of the Garnished Funds
We now come to the propriety of the restitution of the
garnished funds. As petitioners maintain, the CA effectively,
but erroneously, prevented restitution of ESHRI's improperly
garnished funds when it nullified its own August 13, 1999
Resolution in CA-G.R. SP No. 43187. In this regard, petitioners
invite attention to the fact that the restitution of the funds was
in accordance with this Court's final and already executory
decision in G.R. No. 132655, implying that ESHRI should be
restored to its own funds without awaiting the final outcome of
the main case. For ease of reference, we reproduce what the
appellate court pertinently wrote in its Resolution of August
13, 1999: DHTCaI
BASED ON THE FOREGOING, the Application (for
Restitution/Damages against Bond for Execution
Pending Appeal) dated May 12, 1999 filed by [ESHRI]
isGRANTED. Accordingly, the surety of [BF],
STRONGHOLD Insurance Co., Inc.,
isORDERED to PAY the sum of [PhP35 million] to
[ESHRI] under its SICI Bond. . . . In the event that the
bond shall turn out to be insufficient or the surety
(STRONGHOLD) cannot be made liable under its
bond, [BF], being jointly and severally liable under
the bond is ORDEREDto RETURN the amount of
[PhP35 million] representing the garnished deposits
of the bank account maintained by [ESHRI] with the
[PNB] Shangri-la Plaza Branch, Mandaluyong City.
Otherwise, this Court shall cause the implementation
of the Writ of Execution dated April 24, 1998 issued
 in Civil Case No. 63435 against both [BF], and/or its
surety, STRONGHOLD, in case they should fail to
comply with these directives.
SO ORDERED. 21
Petitioners' contention on the restitution angle has no merit,
for, as may be recalled, the CA, simultaneously with the
nullification and setting aside of its August 13, 1999
Resolution, affirmed, via its assailed November 12, 1999
Decision, the RTC Decision of September 23, 1996, the
execution pending appeal of which spawned another dispute
between the parties. And as may be recalled further, the
appellate court nullified its August 13, 1999 Resolution on the
basis of Sec. 5, Rule 39, which provides: aEcADH

Sec. 5. Effect of reversal of executed judgment.

Where the executed judgment is reversed totally or
partially, or annulled, on appeal or otherwise, the
trial court may, on motion, issue such orders of
restitution or reparation of damages as equity and
justice may warrant under the circumstances.
On the strength of the aforequoted provision, the appellate
court correctly dismissed ESHRI's claim for restitution of its
garnished deposits, the executed appealed RTC Decision in
Civil Case No. 63435 having in fact been upheld in toto.
It is true that the Court's Decision of August 11, 1998 in G.R.
No. 132655 recognized the validity of the issuance of the
desired restitution order. It bears to emphasize, however, that
the CA had since then decided CA-G.R. CV No. 57399, the main
case, on the merits when it affirmed the underlying RTC
Decision in Civil Case No. 63435. This CA Decision on the
original and main case effectively rendered our decision on the
incidental procedural matter on restitution moot and
academic. Allowing restitution at this point would not serve
any purpose, but only prolong an already protracted litigation.
 G.R. No. 145873
Petitioner Roxas-del Castillo, in her separate petition, excepts
from the CA Decision affirming, in its entirety, the RTC Decision
holding her, with the other individual petitioners in G.R.
No. 145842, who were members of the Board of Directors of
ESHRI, jointly and severally liable with ESHRI for the judgment
award. She presently contends: CAaDTH
I. THE [CA] ERRED IN NOT DECLARING THAT THE
DECISION OF THE TRIAL COURT ADJUDGING
PETITIONER PERSONALLY LIABLE TO
RESPONDENT VOID FOR NOT STATING THE
FACTUAL AND LEGAL BASIS FOR SUCH AWARD.
II. THE [CA] ERRED IN NOT RULING THAT AS FORMER
DIRECTOR, PETITIONER CANNOT BE HELD
PERSONALLY LIABLE FOR ANY ALLEGED BREACH
OF A CONTRACT ENTERED INTO BY THE
CORPORATION.
III. THE [CA] ERRED IN NOT RULING THAT
RESPONDENT IS NOT ENTITLED TO AN AWARD
OF MORAL DAMAGES.
IV. THE [CA] ERRED IN HOLDING PETITIONER
PERSONALLY LIABLE TO RESPONDENT FOR
EXEMPLARY DAMAGES.
V. THE [CA] ERRED IN NOT RULING THAT
RESPONDENT IS NOT ENTITLED TO ANY AWARD
OF ATTORNEY'S FEES. 22 SHaATC
First off, Roxas-del Castillo submits that the RTC decision in
question violated the requirements of due process and of Sec.
14, Article VII of the Constitution that states, "No decision shall
be rendered by any court without expressing therein clearly
and distinctly the facts and the law on which it is based."
Roxas-del Castillo's threshold posture is correct. Indeed, the
RTC decision in question, as couched, does not provide the
factual or legal basis for holding her personally liable under
the premises. In fact, only in the dispositive portion of the
decision did her solidary liability crop up. And save for her
inclusion as party defendant in the underlying complaint, no
reference is made in other pleadings thus filed as to her
liability.
The Court notes that the appellate court, by its affirmatory
ruling, effectively recognized the applicability of the doctrine
on piercing the veil of the separate corporate identity. Under
the circumstances of this case, we cannot allow such
application. A corporation, upon coming to existence, is
invested by law with a personality separate and distinct from
those of the persons composing it. Ownership by a single or a
small group of stockholders of nearly all of the capital stock of
the corporation is not, without more, sufficient to disregard the
fiction of separate corporate personality. 23 Thus, obligations
incurred by corporate officers, acting as corporate agents, are
not theirs, but direct accountabilities of the corporation they
represent. Solidary liability on the part of corporate officers
may at times attach, but only under exceptional
circumstances, such as when they act with malice or in bad
faith. 24 Also, in appropriate cases, the veil of corporate fiction
shall be disregarded when the separate juridical personality of
a corporation is abused or used to commit fraud and
perpetrate a social injustice, or used as a vehicle to evade
obligations. 25 In this case, no act of malice or like dishonest
purpose is ascribed on petitioner Roxas-del Castillo as to
warrant the lifting of the corporate veil. SCEDaT
The above conclusion would still hold even if petitioner Roxas-
del Castillo, at the time ESHRI defaulted in paying BF's
monthly progress bill, was still a director, for, before she could
be held personally liable as corporate director, it must be
shown that she acted in a manner and under the
circumstances contemplated in Sec. 31 of the Corporation
Code, which reads:
 Sec. 31. Directors or trustees who willfully or
knowingly vote for or assent to patently
unlawful acts of the corporation or acquire any
pecuniary interest in conflict with their duty as
such directors or trustees shall be liable jointly and
severally for all damages resulting therefrom
suffered by the corporation, its stockholders or
members and other persons. (Emphasis ours).
We do not find anything in the testimony of one Crispin
Balingit to indicate that Roxas-del Castillo made any
misrepresentation respecting the payment of the bills in
question. Balingit in fact testified that the submitted, but
unpaid billings were still being evaluated. Further, in the said
testimony, in no instance was bad faith imputed on Roxas-del
Castillo.
Not lost on the Court are some material dates. As it were, the
controversy between the principal parties started in July 1992
when Roxas-del Castillo no longer sat in the ESHRI Board, a
reality BF does not appear to dispute. In fine, she no longer
had any participation in ESHRI's corporate affairs when what
basically is the ESHRI-BF dispute erupted. Familiar and
fundamental is the rule that contracts are binding only among
parties to an agreement. Art. 1311 of the Civil Code is clear on
this point: aDIHCT
Article 1311. Contracts take effect only between the
parties, their assigns and heirs, except in cases
where the rights and obligations are not
transmissible by their nature, or by stipulation or by
provision of law.
In the instant case, Roxas-del Castillo could not plausibly be
held liable for breaches of contract committed by ESHRI nor
for the alleged wrongdoings of its governing board or
corporate officers occurring after she severed official ties with
the hotel management.
Given the foregoing perspective, the other issues raised by
Roxas-del Castillo as to her liability for moral and exemplary
damages and attorney's fees are now moot and academic.
And her other arguments insofar they indirectly impact on the
liability of ESHRI need not detain us any longer for we have
sufficiently passed upon those concerns in our review of G.R.
No. 145842.
WHEREFORE, the petition in G.R. No. 145842 is DISMISSED,
while the petition in G.R. No. 145873 is GRANTED. Accordingly,
the appealed Decision dated November 12, 1999 of the CA in
CA-G.R. CV No. 57399 is AFFIRMED with MODIFICATION that
the petitioner in G.R. No. 145873, Cynthia Roxas-del Castillo, is
absolved from any liability decreed in the RTC Decision dated
September 23, 1996 in Civil Case No. 63435, as affirmed by
the CA. ECTSDa
SO ORDERED.
||| (Edsa Shangri-La Hotel and Resort, Inc. v. BF Corp., G.R. No.
145842, 145873, [June 27, 2008], 578 PHIL 588-609)

THIRD DIVISION

[G.R. No. 160855. April 16, 2008.]

CONCEPCION CHUA GAW, petitioner, vs. SUY BEN

CHUA and FELISA CHUA, respondents.

DECISION

NACHURA, J p:
This is a Petition for Review on Certiorari from the
Decision 1 of the Court of Appeals (CA) in CA-G.R. CV No.
66790 and Resolution 2 denying the motion for
reconsideration. The assailed decision affirmed the ruling of
the Regional Trial Court (RTC) in a Complaint for Sum of Money
in favor of the plaintiff. HIAEaC
The antecedents are as follows:
Spouses Chua Chin and Chan Chi were the founders of three
business enterprises 3namely: Hagonoy Lumber, Capitol
Sawmill Corporation, and Columbia Wood Industries. The
couple had seven children, namely, Santos Chua; Concepcion
Chua; Suy Ben Chua; Chua Suy Phen; Chua Sioc Huan; Chua
Suy Lu; and Julita Chua. On June 19, 1986, Chua Chin died,
leaving his wife Chan Chi and his seven children as his only
surviving heirs. At the time of Chua Chin's death, the net worth
of Hagonoy Lumber was P415,487.20. 4
On December 8, 1986, his surviving heirs executed a Deed of
Extra-Judicial Partition and Renunciation of Hereditary Rights in
Favor of a Co-Heir 5 (Deed of Partition, for brevity), wherein
the heirs settled their interest in Hagonoy Lumber as follows:
one-half (1/2) thereof will pertain to the surviving spouse,
Chan Chi, as her share in the conjugal partnership; and the
other half, equivalent to P207,743.60, will be divided among
Chan Chi and the seven children in equal pro indiviso shares
equivalent to P25,967.00 each. 6In said document, Chan Chi
and the six children likewise agreed to voluntarily renounce
and waive their shares over Hagonoy Lumber in favor of their
co-heir, Chua Sioc Huan. IEaHSD
In May 1988, petitioner Concepcion Chua Gaw and her
husband, Antonio Gaw, asked respondent, Suy Ben Chua, to
lend them P200,000.00 which they will use for the
construction of their house in Marilao, Bulacan. The parties
agreed that the loan will be payable within six (6) months
without interest. 7 On June 7, 1988, respondent issued in their
favor China Banking Corporation Check No. 240810 8 for
P200,000.00 which he delivered to the couple's house in
Marilao, Bulacan. Antonio later encashed the check.
On August 1, 1990, their sister, Chua Sioc Huan, executed a
Deed of Sale over all her rights and interests in Hagonoy
Lumber for a consideration of P255,000.00 in favor of
respondent. 9
Meantime, the spouses Gaw failed to pay the amount they
borrowed from respondent within the designated period.
Respondent sent the couple a demand letter, 10 dated March
25, 1991, requesting them to settle their obligation with the
warning that he will be constrained to take the appropriate
legal action if they fail to do so.
Failing to heed his demand, respondent filed a Complaint for
Sum of Money against the spouses Gaw with the RTC. The
complaint alleged that on June 7, 1988, he extended a loan to
the spouses Gaw for P200,000.00, payable within six months
without interest, but despite several demands, the couple
failed to pay their obligation. 11
In their Answer (with Compulsory Counterclaim), the spouses
Gaw contended that the P200,000.00 was not a loan but
petitioner's share in the profits of Hagonoy Lumber, one of her
family's businesses. According to the spouses, when they
transferred residence to Marilao, Bulacan, petitioner asked
respondent for an accounting, and payment of her share in the
profits, of Capital Sawmills Corporation, Columbia Wood
Industries Corporation, and Hagonoy Lumber. They claimed
that respondent persuaded petitioner to temporarily forego
her demand as it would offend their mother who still wanted to
remain in control of the family businesses. To insure that she
will defer her demand, respondent allegedly gave her
P200,000.00 as her share in the profits of Hagonoy Lumber. 12
In his Reply, respondent averred that the spouses Gaw did not
demand from him an accounting of Capitol Sawmills
Corporation, Columbia Wood Industries, and Hagonoy Lumber.
He asserted that the spouses Gaw, in fact, have no right
whatsoever in these businesses that would entitle them to an
accounting thereof. Respondent insisted that the P200,000.00
was given to and accepted by them as a loan and not as their
share in Hagonoy Lumber. 13
With leave of court, the spouses Gaw filed an Answer (with
Amended Compulsory Counterclaim) wherein they insisted
that petitioner, as one of the compulsory heirs, is entitled to
one-sixth (1/6) of Hagonoy Lumber, which the respondent has
arrogated to himself. They claimed that, despite repeated
demands, respondent has failed and refused to account for the
operations of Hagonoy Lumber and to deliver her share
therein. They then prayed that respondent make an
accounting of the operations of Hagonoy Lumber and to
deliver to petitioner her one-sixth (1/6) share thereof, which
was estimated to be worth not less than
P500,000.00. 14 aESIHT
In his Answer to Amended Counterclaim, respondent explained
that his sister, Chua Sioc Huan, became the sole owner of
Hagonoy Lumber when the heirs executed the Deed of
Partition on December 8, 1986. In turn, he became the sole
owner of Hagonoy Lumber when he bought it from Chua Sioc
Huan, as evidenced by the Deed of Sale dated August 1,
1990. 15
Defendants, in their reply, 16 countered that the documents
on which plaintiff anchors his claim of ownership over Hagonoy
Lumber were not true and valid agreements and do not
express the real intention of the parties. They claimed that
these documents are mere paper arrangements which were
prepared only upon the advice of a counsel until all the heirs
could reach and sign a final and binding agreement, which, up
to such time, has not been executed by the heirs. 17
During trial, the spouses Gaw called the respondent to testify
as adverse witness under Section 10, Rule 132. On direct
examination, respondent testified that Hagonoy Lumber was
the conjugal property of his parents Chua Chin and Chan Chi,
who were both Chinese citizens. He narrated that, initially, his
father leased the lots where Hagonoy Lumber is presently
located from his godfather, Lu Pieng, and that his father
constructed the two-storey concrete building standing thereon.
According to respondent, when he was in high school, it was
his father who managed the business but he and his other
siblings were helping him. Later, his sister, Chua Sioc Huan,
managed Hogonoy Lumber together with their other brothers
and sisters. He stated that he also managed Hagonoy Lumber
when he was in high school, but he stopped when he got
married and found another job. He said that he now owns the
lots where Hagonoy Lumber is operating. 18
On cross-examination, respondent explained that he ceased to
be a stockholder of Capitol Sawmill when he sold his shares of
stock to the other stockholders on January 1, 1991. He further
testified that Chua Sioc Huan acquired Hagonoy Lumber by
virtue of a Deed of Partition, executed by the heirs of Chua
Chin. He, in turn, became the owner of Hagonoy Lumber when
he bought the same from Chua Sioc Huan through a Deed of
Sale dated August 1, 1990. 19 IESTcD
On re-direct examination, respondent stated that he sold his
shares of stock in Capitol Sawmill for P254,000.00, which
payment he received in cash. He also paid the purchase price
of P255,000.00 for Hagonoy Lumber in cash, which payment
was not covered by a separate receipt as he merely delivered
the same to Chua Sioc Huan at her house in Paso de Blas,
Valenzuela. Although he maintains several accounts at
Planters Bank, Paluwagan ng Bayan, and China Bank, the
amount he paid to Chua Sioc Huan was not taken from any of
them. He kept the amount in the house because he was
engaged in rediscounting checks of people from the public
market. 20
On December 10, 1998, Antonio Gaw died due to cardio
vascular and respiratory failure.21
On February 11, 2000, the RTC rendered a Decision in favor of
the respondent, thus:
WHEREFORE, in the light of all the foregoing, the
Court hereby renders judgement ordering defendant
Concepcion Chua Gaw to pay the [respondent] the
following:EATCcI
1. P200,000.00 representing the principal
obligation with legal interest from judicial
demand or the institution of the complaint on
November 19, 1991;
2. P50,000.00 as attorney's fees; and
3. Costs of suit.
The defendants' counterclaim is hereby dismissed for
being devoid of merit.
SO ORDERED. 22
The RTC held that respondent is entitled to the payment of the
amount of P200,000.00 with interest. It noted that respondent
personally issued Check No. 240810 to petitioner and her
husband upon their request to lend them the aforesaid
amount. The trial court concluded that the P200,000.00 was a
loan advanced by the respondent from his own funds and not
remunerations for services rendered to Hagonoy Lumber nor
petitioner's advance share in the profits of their parents'
businesses. aCSEcA
The trial court further held that the validity and due execution
of the Deed of Partition and the Deed of Sale, evidencing
transfer of ownership of Hagonoy Lumber from Chua Sioc Huan
to respondent, was never impugned. Although respondent
failed to produce the originals of the documents, petitioner
judicially admitted the due execution of the Deed of Partition,
and even acknowledged her signature thereon, thus
constitutes an exception to the best evidence rule. As for the
Deed of Sale, since the contents thereof have not been put in
issue, the non-presentation of the original document is not
fatal so as to affect its authenticity as well as the truth of its
contents. Also, the parties to the documents themselves do
not contest their validity. Ultimately, petitioner failed to
establish her right to demand an accounting of the operations
of Hagonoy Lumber nor the delivery of her 1/6 share therein.

As for petitioner's claim that an accounting be done on Capitol

Sawmill Corporation and Columbia Wood Industries, the trial
court held that respondent is under no obligation to make such
an accounting since he is not charged with operating these
enterprises. 23
Aggrieved, petitioner appealed to the CA, alleging that the trial
court erred (1) when it considered the amount of P200,000.00
as a loan obligation and not Concepcion's share in the profits
of Hagonoy Lumber; (2) when it considered as evidence for the
defendant, plaintiff's testimony when he was called to testify
as an adverse party under Section 10 (e), Rule 132 of the
Rules of Court; and (3) when it considered admissible mere
copies of the Deed of Partition and Deed of Sale to prove that
respondent is now the owner of Hagonoy Lumber. 24
On May 23, 2003, the CA affirmed the Decision of the
RTC. 25 The appellate court found baseless the petitioner's
argument that the RTC should not have included respondent's
testimony as part of petitioner's evidence. The CA noted that
the petitioner went on a fishing expedition, the taking of
respondent's testimony having taken up a total of eleven
hearings, and upon failing to obtain favorable information from
the respondent, she now disclaims the same. Moreover, the CA
held that the petitioner failed to show that the inclusion of
respondent's testimony in the statement of facts in the
assailed decision unduly prejudiced her defense and
counterclaims. In fact, the CA noted that the facts testified to
by respondent were deducible from the totality of the evidence
presented. HTASIa
The CA likewise found untenable petitioner's claim that
Exhibits "H" (Deed of Sale) and Exhibit "I" (Deed of Partition)
were merely temporary paper arrangements. The CA agreed
with the RTC that the testimony of petitioner regarding the
matter was uncorroborated she should have presented the
other heirs to attest to the truth of her allegation. Instead,
petitioner admitted the due execution of the said documents.
Since petitioner did not dispute the due execution and
existence of Exhibits "H" and "I", there was no need to produce
the originals of the documents in accordance with the best
evidence rule. 26
On December 2, 2003, the CA denied the petitioner's motion
for reconsideration for lack of merit. 27
Petitioner is before this Court in this petition for review
on certiorari, raising the following errors:
I. THAT ON THE PRELIMINARY IMPORTANT RELATED
ISSUE, CLEAR AND PALPABLE LEGAL ERROR HAS
BEEN COMMITTED IN THE APPLICATION AND
LEGAL SIGNIFICANCE OF THE RULE ON
EXAMINATION OF ADVERSE PARTY OR HOSTILE
WITNESS UNDER SECTION 10 (d) AND (e) OF
RULE 132, CAUSING SERIOUS DOUBT ON THE
LOWER COURT'S APPEALED DECISION'S
OBJECTIVITY, ANNEX "C". HACaSc
II. THAT ON THE IMPORTANT LEGAL ISSUE RELATIVE
TO THE AFORESAID TWO OPPOSING CLAIMS OF
RESPONDENT AND PETITIONER, CLEAR AND
PALPABLE LEGAL ERROR HAS BEEN COMMITTED
UNDER THE LOWER COURT'S DECISION ANNEX
"C" AND THE QUESTIONED DECISION OF MAY 23,
 2003 (ANNEX "A") AND THE RESOLUTION OF
DECEMBER 2, 2003, (ANNEX "B") IN DEVIATING
FROM AND DISREGARDING ESTABLISHED
SUPREME COURT DECISIONS ENJOINING COURTS
NOT TO OVERLOOK OR MISINTERPRET
IMPORTANT FACTS AND CIRCUMSTANCES,
SUPPORTED BY CLEAR AND CONVINCING
EVIDENCE ON RECORD, AND WHICH ARE OF
GREAT WEIGHT AND VALUE, WHICH WOULD
CHANGE THE RESULT OF THE CASE AND ARRIVE
AT A JUST, FAIR AND OBJECTIVE DECISION.
(Citations omitted)
III. THAT FINALLY, AS TO THE OTHER LEGAL
IMPORTANT ISSUE RELATIVE TO CLAIM OR
OWNERSHIP OF THE "HAGONOY LUMBER" FAMILY
BUSINESS, CLEAR AND PALPABLE LEGAL ERROR
HAS BEEN COMMITTED ON THE REQUIREMENTS
AND CORRECT APPLICATION OF THE "BEST
EVIDENCE RULE" UNDER SECTION 3, RULE 130
OF THE REVISED RULES OF COURT. 28
The petition is without merit.
Petitioner contends that her case was unduly prejudiced by the
RTC's treatment of the respondent's testimony as adverse
witness during cross-examination by his own counsel as part of
her evidence. Petitioner argues that the adverse witness'
testimony elicited during cross-examination should not be
considered as evidence of the calling party. She contends that
the examination of respondent as adverse witness did not
make him her witness and she is not bound by his testimony,
particularly during cross-examination by his own
counsel. 29 In particular, the petitioner avers that the
following testimony of the respondent as adverse witness
should not be considered as her evidence:
 (11.a) That RESPONDENT-Appellee became owner of
the "HAGONOY LUMBER" business when he
bought the same from Chua Sioc Huan through a
Deed of Sale dated August 1, 1990 (EXH.H);
(11.b) That the "HAGONOY LUMBER," on the other
hand, was acquired by the sister Chua Sioc
Huan, by virtue of Extrajudicial Partition and
Renunciation of Hereditary Rights in favor of a
Co-Heir (EXH. I);
(11.c) That the 3 lots on which the "HAGONOY
LUMBER" business is located were acquired by Lu
Pieng from the Santos family under the Deed of
Absolute Sale (EXH. J); that Lu Pieng sold the Lots
to Chua Suy Lu in 1976 (EXHS. K, L, & M.); that
Chua Siok Huan eventually became owner of the
3 Lots; and in 1989 Chua Sioc Huan sold them to
RESPONDENT-Appellee (EXHS. Q and P); that
after he acquired the 3 Lots, he has not sold
them to anyone and he is the owner of the
lots. 30
We do not agree that petitioner's case was prejudiced by the
RTC's treatment of the respondent's testimony during cross-
examination as her evidence.
If there was an error committed by the RTC in ascribing to the
petitioner the respondent's testimony as adverse witness
during cross-examination by his own counsel, it constitutes a
harmless error which would not, in any way, change the result
of the case. ISaTCD
In the first place, the delineation of a piece of evidence as part
of the evidence of one party or the other is only significant in
determining whether the party on whose shoulders lies the
burden of proof was able to meet the quantum of evidence
needed to discharge the burden. In civil cases, that burden
devolves upon the plaintiff who must establish her case by
preponderance of evidence. The rule is that the plaintiff must
rely on the strength of his own evidence and not upon the
weakness of the defendant's evidence. Thus, it barely matters
who with a piece of evidence is credited. In the end, the court
will have to consider the entirety of the evidence presented by
both parties. Preponderance of evidence is then determined by
considering all the facts and circumstances of the case, culled
from the evidence, regardless of who actually presented it. 31
That the witness is the adverse party does not necessarily
mean that the calling party will not be bound by the former's
testimony. The fact remains that it was at his instance that his
adversary was put on the witness stand. Unlike an ordinary
witness, the calling party may impeach an adverse witness in
all respects as if he had been called by the adverse
party, 32 except by evidence of his bad character. 33 Under a
rule permitting the impeachment of an adverse witness,
although the calling party does not vouch for the witness'
veracity, he is nonetheless bound by his testimony if it is not
contradicted or remains unrebutted. 34
A party who calls his adversary as a witness is, therefore, not
bound by the latter's testimony only in the sense that he may
contradict him by introducing other evidence to prove a state
of facts contrary to what the witness testifies on. 35 A rule
that provides that the party calling an adverse witness shall
not be bound by his testimony does not mean that such
testimony may not be given its proper weight, but merely that
the calling party shall not be precluded from rebutting his
testimony or from impeaching him. 36 This, the petitioner
failed to do. DHCSTa
In the present case, the petitioner, by her own testimony,
failed to discredit the respondent's testimony on how Hagonoy
Lumber became his sole property. The petitioner admitted
having signed the Deed of Partition but she insisted that the
transfer of the property to Chua Siok Huan was only
temporary. On cross-examination, she confessed that no other
document was executed to indicate that the transfer of the
business to Chua Siok Huan was a temporary arrangement.
She declared that, after their mother died in 1993, she did not
initiate any action concerning Hagonoy Lumber, and it was
only in her counterclaim in the instant that, for the first time,
she raised a claim over the business.
Due process requires that in reaching a decision, a tribunal
must consider the entire evidence presented. 37 All the
parties to the case, therefore, are considered bound by the
favorable or unfavorable effects resulting from the
evidence. 38 As already mentioned, in arriving at a decision,
the entirety of the evidence presented will be considered,
regardless of the party who offered them in evidence. In this
light, the more vital consideration is not whether a piece of
evidence was properly attributed to one party, but whether it
was accorded the apposite probative weight by the court. The
testimony of an adverse witness is evidence in the case and
should be given its proper weight, and such evidence becomes
weightier if the other party fails to impeach the witness or
contradict his testimony. ScHADI
Significantly, the RTC's finding that the P200,000.00 was given
to the petitioner and her husband as a loan is supported by
the evidence on record. Hence, we do not agree with the
petitioner's contention that the RTC has overlooked certain
facts of great weight and value in arriving at its decision. The
RTC merely took into consideration evidence which it found to
be more credible than the self-serving and uncorroborated
testimony of the petitioner.
At this juncture, we reiterate the well-entrenched doctrine that
the findings of fact of the CA affirming those of the trial court
are accorded great respect, even finality, by this Court. Only
errors of law, not of fact, may be reviewed by this Court in
petitions for review on certiorari under Rule 45. 39 A departure
from the general rule may be warranted where the findings of
fact of the CA are contrary to the findings and conclusions of
the trial court, or when the same is unsupported by the
evidence on record. 40 There is no reason to apply the
exception in the instant case because the findings and
conclusions of the CA are in full accord with those of the trial
court. These findings are buttressed by the evidence on
record. Moreover, the issues and errors alleged in this petition
are substantially the very same questions of fact raised by
petitioner in the appellate court.

On the issue of whether the P200,000.00 was really a loan, it is

well to remember that a check may be evidence of
indebtedness. 41 A check, the entries of which are in writing,
could prove a loan transaction. 42 It is pure naivet to insist
that an entrepreneur who has several sources of income and
has access to considerable bank credit, no longer has any
reason to borrow any amount. STIEHc
The petitioner's allegation that the P200,000.00 was advance
on her share in the profits of Hagonoy Lumber is implausible. It
is true that Hagonoy Lumber was originally owned by the
parents of petitioner and respondent. However, on December
8, 1986, the heirs freely renounced and waived in favor of
their sister Chua Sioc Huan all their hereditary shares and
interest therein, as shown by the Deed of Partition which the
petitioner herself signed. By virtue of this deed, Chua Sioc
Huan became the sole owner and proprietor of Hagonoy
Lumber. Thus, when the respondent delivered the check for
P200,000.00 to the petitioner on June 7, 1988, Chua Sioc Huan
was already the sole owner of Hagonoy Lumber. At that time,
both petitioner and respondent no longer had any interest in
the business enterprise; neither had a right to demand a share
in the profits of the business. Respondent became the sole
owner of Hagonoy Lumber only after Chua Sioc Huan sold it to
him on August 1, 1990. So, when the respondent delivered to
the petitioner the P200,000.00 check on June 7, 1988, it could
not have been given as an advance on petitioner's share in the
business, because at that moment in time both of them had no
participation, interest or share in Hagonoy Lumber. Even
assuming,arguendo, that the check was an advance on the
petitioner's share in the profits of the business, it was highly
unlikely that the respondent would deliver a check drawn
against his personal, and not against the business enterprise's
account.
It is also worthy to note that both the Deed of Partition and the
Deed of Sale were acknowledged before a Notary Public. The
notarization of a private document converts it into a public
document, and makes it admissible in court without further
proof of its authenticity. 43 It is entitled to full faith and credit
upon its face. 44 A notarized document carries evidentiary
weight as to its due execution, and documents acknowledged
before a notary public have in their favor the presumption of
regularity. Such a document must be given full force and effect
absent a strong, complete and conclusive proof of its falsity or
nullity on account of some flaws or defects recognized by
law. 45 A public document executed and attested through the
intervention of a notary public is, generally, evidence of the
facts therein expressed in clear unequivocal manner. 46
Petitioner, however, maintains that the RTC erred in admitting
in evidence a mere copy of the Deed of Partition and the Deed
of Sale in violation of the best evidence rule. In addition,
petitioner insists that the Deed of Sale was not the result
of bona fidenegotiations between a true seller and buyer.
The "best evidence rule" as encapsulated in Rule 130, Section
3, 47 of the Revised Rules of Civil Procedure applies only when
the content of such document is the subject of the inquiry.
Where the issue is only as to whether such document was
actually executed, or exists, or on the circumstances relevant
to or surrounding its execution, the best evidence rule does
not apply and testimonial evidence is admissible. Any other
substitutionary evidence is likewise admissible without need to
account for the original.48 Moreover, production of the original
may be dispensed with, in the trial court's discretion,
whenever the opponent does not bona fide dispute the
contents of the document and no other useful purpose will be
served by requiring production. 49
Accordingly, we find that the best evidence rule is not
applicable to the instant case. Here, there was no dispute as to
the terms of either deed; hence, the RTC correctly admitted in
evidence mere copies of the two deeds. The petitioner never
even denied their due execution and admitted that she signed
the Deed of Partition. 50 As for the Deed of Sale, petitioner
had, in effect, admitted its genuineness and due execution
when she failed to specifically deny it in the manner required
by the rules. 51 The petitioner merely claimed that said
documents do not express the true agreement and intention of
the parties since they were only provisional paper
arrangements made upon the advice of
counsel.52 Apparently, the petitioner does not contest the
contents of these deeds but alleges that there was a
contemporaneous agreement that the transfer of Hagonoy
Lumber to Chua Sioc Huan was only temporary.
An agreement or the contract between the parties is the
formal expression of the parties' rights, duties and obligations.
It is the best evidence of the intention of the parties. 53 The
parties' intention is to be deciphered from the language used
in the contract, not from the unilateral post facto assertions of
one of the parties, or of third parties who are strangers to the
contract. 54 Thus, when the terms of an agreement have been
reduced to writing, it is deemed to contain all the terms
agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than
the contents of the written agreement. 55
WHEREFORE, premises considered, the petition is DENIED. The
Decision of the Court of Appeals in CA-G.R. CV No. 66790
dated May 23, 2003 and Resolution dated December 2, 2003
are AFFIRMED. HCacTI
SO ORDERED.
||| (Gaw v. Chua, G.R. No. 160855, [April 16, 2008], 574 PHIL
640-657)

FIRST DIVISION

[G.R. No. 146586. January 26, 2005.]

DEPARTMENT OF EDUCATION, CULTURE and

SPORTS, petitioner, vs. JULIA DEL ROSARIO,
MARIA DEL ROSARIO, PACENCIA DEL ROSARIO,
and HEIRS OF
SANTOS DEL ROSARIO, respondents.

DECISION

CARPIO, J p:
The Case
This is a petition for review 1 to set aside the Decision 2 dated
25 September 2000 and the Resolution dated 29 December
2000 of the Court of Appeals in CA-G.R. CV No. 43929. The
Court of Appeals reversed the Decision 3 dated 7 July 1993 of
the Regional Trial Court of Bulacan, Branch 8, Malolos ("trial
court") in Civil Case No. 70-M-92.
The Facts
On 14 February 1992, respondents Julia Del Rosario,
Maria Del Rosario, Pacencia DelRosario and the Heirs of
Santos Del Rosario ("respondents") filed before the trial court a
complaint for Recovery of Possession against petitioner
Department of Education, Culture and Sports ("DECS").
Respondents alleged that they own a parcel of land with an
area of 1,181 square meters ("Property") situated in
Kaypombo, 4 Sta. Maria, Bulacan. The Property was registered
in 1976 in the name of respondents under Transfer Certificate
of Title No. T-222432 of the Bulacan Register of Deeds.
Respondents alleged that the Kaypombo Primary School Annex
("KPPS") under DECS was occupying a portion of the Property
through respondents' tolerance and that of their predecessors-
in-interest. Respondents further alleged that KPPS refused to
vacate the premises despite their valid demands to do so.
In its Answer, DECS countered that KPPS's occupation of a
portion of the Property was with the express consent and
approval of respondents' father, the late
Isaias Del Rosario("Isaias"). DECS claimed that some time in
1959 Isaias donated a portion ("Donated Site") of the Property
to the Municipality of Sta. Maria ("Municipality") for school site
purposes. Atty. Ely Natividad, now a regional trial court judge
("Judge Natividad"), prepared the deed of donation and the
acceptance. KPPS started occupying the Donated Site in 1962.
At present, KPPS caters to the primary educational needs of
approximately 60 children between the ages of 6 and 8.
Because of the donation, DECS now claims ownership of the
650 square meter Donated Site. In fact, DECS renamed the
school the Isaias Del RosarioPrimary School.
During the pre-trial conference held on 3 September
1992, DECS admitted the existence and execution of TCT No.
T-222432 (Exhibit "A"), Tax Declaration No. 6310 (Exhibit "B"),
and the tax receipts in respondents' names for the years 1991
and 1992 (Exhibits "B-1" and "B-2"). On the other hand,
respondents admitted the existence of Judge Natividad's
affidavit that he prepared the deed of donation (Exhibit "1")
and the tax declaration for 1985 in the Municipality's name
(Exhibit "2"). Since there was no dispute that the Property was
registered in respondents' names, the parties agreed to a
reverse trial with DECSpresenting its evidence first to prove
that there was a valid donation to the Municipality.TSEAaD
DECS presented three witnesses: Ricardo Nicolas, Vidal De
Jesus and Judge Natividad, all residents of Kaypombo, Sta.
Maria, Bulacan. The trial court summarized the witnesses'
testimonies, thus:
Defendant, represented by the Office of the Solicitor
General, proceeded to present as its first witness,
Ricardo Nicolas, 78 years old, widower, housekeeper
and residing at [K]aypombo, Sta. Maria, Bulacan,
since 1953 up to the present. He testified that during
the duration of his residency in [K]aypombo, he came
across a public elementary school (KPPS); that as far
as he knows, the land occupied by the primary
school was formerly owned by Isaias del Rosario who
donated said land to the people of Sta. Maria,
Bulacan in 1959; that the act of donating said land
was made during a political meeting in his residence
by Isaias del Rosario and in the presence of the then
incumbent mayor; he actually saw
Isaias del Rosarioand Mayor Ramos sign a document
which is a deed of donation in favor of the
Municipality of Sta. Maria; that the signing was made
in the presence of Judge Natividad who was then a
municipal councilor; that Isaias del Rosario is now
dead but his death occurred long after the
construction of the KPPS and that
Isaias delRosario even witnessed the construction of
the primary school.
Vidal de Jesus, the second witness for the defense,
65 years old, married, a barangay councilman of
Kaypombo, Sta. Maria, Bulacan, and presently
residing at No. 437 Kaypombo, Sta. Maria, Bulacan,
testified that as barangay councilman, he was aware
of the land problem of KPPS; that in 1991, the
barangay council and the children of
Isaias del Rosario had a meeting in the presence of
Judge Natividad, during which, the latter told the
children of Isaias del Rosario that the land had been
donated by their father. The children agreed but
requested that the school be renamed after their
father's name; that the barangay council tried to
secure a copy of the deed of donation from the
Municipality of Sta. Maria, but according to the
people at the municipal hall, when they transferred
to the new municipal building, the deed got lost, only
they were able to get a copy of the tax declaration in
the name of the municipality of Sta. Maria, Bulacan
(Exh. "2"), a certification to that effect was issued by
the municipal mayor (Exh. "3"). They went to
the DECSoffice in Malolos, but could not likewise find
a copy of the deed.
The last witness for the defense was Judge Eli
Natividad, 63 years old, widower, resident of
Kaypombo, Sta. Maria, Bulacan. He testified that
KPPS is very near his house; that the land occupied
by said school is formerly owned by Isaias delRosario,
a close relative; that as far as he knows, the
municipality of Sta. Maria is now the owner of the
land; that when he was still one of the incumbent
municipal councilors of Sta. Maria in 1961, his
relative Isaias del Rosario went to his house and told
him that he wanted to have a primary school in their
place as he saw the plight of small pupils in their
place; that the elementary school then existing was
very far from their place and
Isaias del Rosario wanted to have a primary school to
help these pupils; that Isaias del Rosario was willing
to donate a portion of the questioned lot for school
site, so that said matter was relayed to the municipal
council; he also testified that he prepared the deed of
donation which was signed by Isaias del Rosario in
 his residence which was accepted by the municipality
of Sta. Maria, Bulacan through a resolution signed in
the office of the secretary and the municipal mayor;
that a copy of said resolution could not be found due
to the transfer of the municipal hall from the old to
the new building. 5
Respondents presented two witnesses: Eugenia R. Ignacio and
Maria Del Rosario-Esteban, daughters of the late Isaias. The
trial court summarized their testimonies, as follows:
For the plaintiffs, Eugenia R. Ignacio, 59, residing at
Kaypombo, Sta. Maria, Bulacan testified that she
knows the plaintiffs as they are her brothers/sisters;
that their father Isaias del Rosario died on April 18,
1966 long after the construction of the school and
that she does not know everything about the
donation because her father never informed them of
his dealings and she did not inquire from him about
the occupancy of the lot by the school. DSIaAE
Maria del Rosario-Esteban, 66, residing at Pulang-
lupa, Pandi, one of the plaintiffs herein, testified that
she knows the property in question and that they
own it by virtue of succession and that she cannot
recall how the school was constructed on the land;
that her parents never donated any property
because that is their only property. Also, she stated
that their father told them that he just lent the
property temporarily to the municipality and she
never found any document conveying the lot in
question to the municipality of Sta. Maria, Bulacan. 6
On 7 July 1993, the trial court rendered judgment dismissing
respondents' complaint for recovery of possession as follows:
WHEREFORE, based on the foregoing premises, and
for a much greater cause, the instituted complaint,
for recovery of possession of 1,181 square meters of
 land in Kaypombo, Sta. Maria, Bulacan, covered by
TCT No. T-222432 against the defendant is hereby
DISMISSED without costs. 7
The trial court explained its decision in this wise:
After a careful consideration of the facts at hand,
taking into account the credibility and
reasonableness of the testimonies of the witnesses,
the court is of the opinion that the defense was able
to prove the due execution of the deed of donation
and its acceptance, as well as the loss of the same,
in accordance withRule 130[,] Sec. 4. It is recalled
that Judge Eli Natividad, then a municipal councilor of
Sta. Maria, testified that he was the person who
prepared the deed of donation and later notarized
the same, and that said deed was duly executed and
signed before him and in his presence. Likewise, he
affirmed that the municipal board of Sta. Maria,
Bulacan, passed a resolution accepting the deed of
donation in favor of the said municipality. Noteworthy
is the rule that a recantation/recollection of witness is
a form of secondary evidence to prove the
existence/content of a document. Since the loss of
the deed subject matter of this case was likewise
duly proved by the defense, exerting the best
possible efforts to locate or secure a copy of the
same and without bad faith on its part, this Court is
bent to give a greater weight to the secondary
evidence adduced by the defense vis--vis the title in
the name of the plaintiff[s], most particularly in this
case, where the plaintiffs failed to make it appear
that other and more secondary evidence is known to
the defendant and can be produced by them.
Further judging on the consistency, credibility and
personality of the witnesses of the defense, notably
Judge Eli Natividad who was then a municipal
 councilor of Sta. Maria at the time of the execution of
the deed of donation and who is thus in a best
position to testify on the matter, not to mention the
fact that their testimonies were all under oath, the
Court cannot avoid but give weight to their
statements and declarations. The defense witnesses
were not induced by ill motive to testify in favor of
the DECS, considering that they will not derive any
personal benefit, material or otherwise, from such an
act. On the contrary, such act may be considered
heroic, as it is a manifestation of a moral compulsion
to help shed light to the truth.

On the part of the plaintiffs, it was testified to by

Eugenia Ignacio that their father (donor) died on April
18, 1966, long after the school was constructed on
the subject land with the occupation of the land by
the school which continued up to the present, and
even after the land was allegedly transferred by
succession to the plaintiffs in 1976, it was only now
that it comes to the mind of the plaintiffs to seek
recovery of the possession of the same. This, among
other things, may be taken to favor the stand of the
defense that the land occupied by the school was in
truth, donated to the municipality of Sta. Maria. 8
Respondents appealed to the Court of Appeals. On 25
September 2000, the Court of Appeals rendered judgment as
follows:
WHEREFORE, premises considered, the appealed
decision is REVERSED and another one entered
ordering the defendant to vacate the subject
premises. 9
The appellate court denied DECS' motion for reconsideration in
the Resolution dated 29 December 2000. Hence, this petition.
 The Court of Appeals' Ruling
The Court of Appeals held that DECS failed to prove the
existence and due execution of the deed of donation as well as
the Resolution of the municipal council accepting the donation.
The Court of Appeals was not fully satisfied that DECS or the
Municipality had made a diligent search of the alleged "lost"
deed of donation. Pertinent portions of the Court of Appeals'
Decision read:
It is unfortunate that the Deed of Donation and the
Resolution were not produced during the trial. The
defendant alleged that these were lost when the
Municipality transferred to a new building. The
defendant resorted to proving the documents'
existence through Sec. 5 of Rule 130 (B) of the
Revised Rules on Evidence by relying on the
testimony of the witnesses who were present during
the execution of the lost documents. . . . .
xxx xxx xxx
The Court disagrees with the ruling of the lower court
to the effect that the defendant was able to satisfy
the foregoing requisites. The defense was not able to
prove the due execution or existence of the deed of
donation and the resolution, as well as the loss of
these documents as the cause of their
unavailability. CHaDIT
The Rule requires that the defendant must "prove its
contents by a copy, or by a recital of its contents in
some authentic document, or by the testimony of the
witnesses in the order stated". However, the
defendant proceeded with the last resort-testimony
of the witnesses, without even showing any diligent
effort to secure a copy of the deed of donation and
the resolution. Note that Atty. Eli Natividad, then a
municipal councilor of Sta. Maria, testified that he
was the person who prepared the deed of donation
and later notarized the same. He also affirmed that
the municipal board of Sta. Maria, Bulacan passed a
Resolution as he was a municipal councilor at that
time such resolution was passed. He testified that he
furnished the municipal government, the Division
Office of Education in Bulacan, the court of Sta.
Maria a copy of the deed. However, the defendant
only submitted an affidavit showing that the deed
can no longer be located in the municipal
government. There was no evidence to show that the
defendant looked for a copy from the Clerk of Court
of Sta. Maria, Bulacan. If it is true that Atty. Natividad
notarized the deed, he should have a copy of it. In
fact, such act of notarizing the deed should have
been in his notarial register. This notarial register was
supposed to be forwarded to the Clerk of Court of the
Court of First Instance of the province and later, to
the Chief of the National Library.
"Before secondary evidence of a writing may be
introduced on the ground that the instrument
has been lost there must be proof that a diligent
search has been made in the place where it is
most likely to be found and that the search has
not been successful."
In the case at bar, this Court is not fully satisfied that
a search was made or that there was diligence in the
search. The lower court erred in hastily concluding
that the loss of the document was sufficiently
established when in fact, the defendant did not look
for it in the office of the Clerk of Court and the
National Library. Since there was no diligent search,
this Court finds it hard to believe the defendant's
theory that such documents existed because, for
 sure, if there really was a notarized deed or a
resolution, there must be a copy.
"Secondary evidence of the contents of writings
is admitted upon the theory that the original
cannot be produced by the party by whom the
evidence is offered within a reasonable time by
the exercise of reasonable diligence. Until,
however, the non-production of the primary
evidence has been sufficiently accounted for,
secondary evidence is not ordinarily admissible."
For this Court to affirm the ruling of the lower court
based on testimonies alone will work injustice to the
plaintiffs. 10
The Issue
In its memorandum, DECS raises the sole issue of
WHETHER THE COURT OF APPEALS GRAVELY ERRED
IN HOLDING THAT PETITIONER FAILED TO PROVE THE
DUE EXECUTION OR EXISTENCE OF THE DEED OF
DONATION AND THE RESOLUTION OF THE MUNICIPAL
COUNCIL ACCEPTING THE DONATION, AS WELL AS
THE LOSS OF THE DOCUMENTS AS THE CAUSE OF
THEIR UNAVAILABILITY. 11
The Solicitor General contends that DECS had satisfactorily
proven by secondary evidence the fact of donation, the
existence and due execution of the deed of donation as well as
the municipal council Resolution accepting the
donation. DECS had also adequately proven the loss of these
documents. According to the Solicitor General, based on the
evidence presented in the trial court, DECS established that
Isaias donated a parcel of land to the Municipality as the site
of a school. Isaias executed a deed of donation, which then
Atty. Eli Natividad notarized. There was a municipal council
Resolution accepting the donation and expressing gratitude to
Isaias. There was notice of this acceptance
as DECS constructed the school on the Donated Site during
the lifetime of the donor, without objection on his part. Since
all the essential formalities had been followed, the donation
made by Isaias long after the death of his wife Nieves
Gumatay is valid and proven by secondary evidence.
The Court's Ruling
The petition lacks merit.
Formal Requisites of Donations of Real Property
The donation of real property, which is a solemn contract, is
void without the formalities stated in Article 749 of the Civil
Code of the Philippines ("Civil Code"). Article 749 of theCivil
Code reads:
Art. 749. In order that the donation of an immovable
may be valid, it must be made in a public document,
specifying therein the property donated and the
value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of
donation or in a separate public document, but it
shall not take effect unless it is done during the
lifetime of the donor.
If the acceptance is made in a separate instrument,
the donor shall be notified thereof in an authentic
form, and this step shall be noted in both
instruments.
Article 749 of the Civil Code requires that the donation of real
property must be made in a public instrument. Otherwise, the
donation is void. A deed of donation acknowledged before a
notary public is a public document. 12 The notary public shall
certify that he knows the person acknowledging the
instrument and that such person is the same person who
executed the instrument, acknowledging that the instrument is
his free act and deed. The acceptance may be made in the
same deed of donation or in a separate instrument. An
acceptance made in a separate instrument must also be in a
public document. If the acceptance is in a separate public
instrument, the donor shall be notified in writing of such fact.
Both instruments must state the fact of such notification.13
Best and Secondary Evidence
The best or primary evidence of a donation of real property is
an authentic copy of the deed of donation with all the
formalities required by Article 749 of the Civil Code.The duty to
produce the original document arises when the subject of the
inquiry are the contents of the writing in which case there can
be no evidence of the contents of the writing other than the
writing itself. Simply put, when a party wants to prove the
contents of the document, the best evidence is the original
writing itself. aCTcDS
A party may prove the donation by other competent or
secondary evidence under the exceptions in Section 3, Rule
130 of the Revised Rules on Evidence. Section 3 reads:
SEC. 3. Original document must be produced;
exceptions. When the subject of inquiry is the
contents of a document, no evidence shall be
admissible other than the original document itself,
except in the following cases:
(a) When the original has been lost or destroyed, or
cannot be produced in court, without bad faith on the
part of the offeror;
(b) . . .;
(c) . . .;
(d) . . . .
In relation to this, Section 5 of Rule 130 reads:
SEC. 5. When original document is unavailable.
When the original document has been lost or
destroyed, or cannot be produced in court, the
 offeror, upon proof of its execution or existence and
the cause of its unavailability without bad faith on his
part, may prove its contents by a copy, or by a recital
of its contents in some authentic document, or by the
testimony of witnesses in the order stated.
Secondary evidence of the contents of a document refers to
evidence other than the original document itself. 14 A party
may introduce secondary evidence of the contents of a written
instrument not only when the original is lost or destroyed, but
also when it cannot be produced in court, provided there is no
bad faith on the part of the offeror. However, a party must first
satisfactorily explain the loss of the best or primary evidence
before he can resort to secondary evidence. A party must first
present to the court proof of loss or other satisfactory
explanation for non-production of the original instrument. The
correct order of proof is as follows: existence, execution, loss,
contents, although the court in its discretion may change this
order if necessary. 15

The testimony of Ricardo Nicolas may have established to

some extent the existence of the deed of donation since he
testified that he was present when Isaias and the mayor talked
about the donation and that he witnessed the signing of the
document. However, Ricardo Nicolas admitted during cross-
examination that he did not read and did not have personal
knowledge of the contents of the document that Isaias and the
mayor supposedly signed. 16
In the same vein, Vidal De Jesus' testimony does not help to
establish the deed of
donation's existence, execution and contents. He testified that
he never saw the deed of donation. On cross-examination,
Vidal De Jesus admitted that the information that Isaias
donated the lot to the Municipality was only relayed to him by
Judge Natividad himself. 17If at all, DECS offered Vidal De
Jesus' testimony to establish the loss of the deed of donation.
Vidal de Jesus testified that the barangay council tried to get a
copy of the deed but the Municipality informed the barangay
council that the deed was lost when the municipal office was
transferred to a new building. DECS also made a search in
the DECSoffice in Malolos but this proved futile too.
This leaves us with Judge Natividad's testimony. Judge
Natividad testified that he prepared and notarized the deed of
donation. He further testified that there was a municipal
council Resolution, signed in the Office of the Secretary and of
the Mayor, accepting the donation and expressing gratitude to
the donor. He furnished the municipal government,
the DECS Division Office of Bulacan and the clerk of court of
Sta. Maria a copy of the deed of donation.
DECS did not introduce in evidence the municipal council
Resolution accepting the donation. There is also no proof that
the donee communicated in writing its acceptance to the
donor aside from the circumstance that DECS constructed the
school during Isaias' lifetime without objection on his part.
There is absolutely no showing that these steps were noted in
both instruments.
Sufficiency of Proof of Loss
What mainly militates against DECS' claim is, as the Court of
Appeals found, inadequate proof that DECS or the Municipality
made a diligent search in the places where the deed of
donation may likely be found and that the search was
unsuccessful. Prior to the introduction of secondary evidence,
a party must establish the existence and due execution of the
instrument. After a party establishes the existence and due
execution of the document, he must prove that the document
was lost or destroyed. 18 The destruction of the instrument
may be proved by any person knowing the fact. The
loss may be shown by any person who knew the fact
of its loss, or by any one who had made, on the
 judgment of the court, a sufficient examination in the
place [or] places where the document or papers of
similar character are usually kept by the person in
whose custody the document lost was, and has been
unable to find it; or who has made any other
investigation which is sufficient to satisfy the court
that the instrument is indeed lost. 19
Here, DECS allegedly made a search in the municipal building
and in the DECS Division Office in Bulacan. The copies of the
deed of donation furnished these offices were purportedly
"lost" when these offices transferred to new locations.
However, as the Court of Appeals correctly pointed out, Judge
Natividad who claimed to have notarized the deed of donation
failed to account for other copies of the deed, which the law
strictly enjoins him to record, and furnish to other designated
government offices. caADSE
The Notarial Law is explicit on the obligations and duties of a
notary public. The law requires him to keep a notarial register
where he shall record all his official acts as notary public. The
law specifies the information that the notary public must enter
in the notarial register. Failure to perform this duty results in
the revocation of his commission as notary public. We quote
the provisions of the Notarial Law pertinent to the case:
SECTION 245. Notarial register. Every notary
public shall keep a register to be known as the
notarial register, wherein record shall be made of all
his official acts as notary; and he shall supply a
certified copy of such record, or any part thereof, to
any person applying for it and paying the legal fees
therefor.
Such register shall be kept in books to be furnished
by the Attorney-General (Solicitor-General) to any
notary public upon request and upon payment of the
actual cost thereof, but officers exercising the
functions of notaries public ex officio shall be
supplied with the register at government expense.
The register shall be duly paged, and on the first
page, the Attorney-General (Solicitor-General) shall
certify the number of pages of which the book
consist[s].
SECTION 246. Matters to be entered therein. The
notary public shall enter in such register, in
chronological order, the nature of each instrument
executed, sworn to, or acknowledged before him, the
person executing, swearing to, or acknowledging the
instrument, the witnesses, if any, to the signature,
the date of the execution, oath, or acknowledgment
or the instrument, the fees collected by him for his
services as notary in connection therewith,
and; when the instrument is contract, he shall
keep a correct copy thereof as part of his
records, and shall likewise enter in said records a
brief description of the substance thereof, and shall
give to each entry a consecutive number, beginning
with number one in each calendar year. The notary
shall give to each instrument executed, sworn to, or
acknowledged before him a number corresponding to
the one in his register, and shall also state on the
instrument the page or pages of his register on which
the same is recorded. No blank line shall be left
between entries.
xxx xxx xxx
At the end of each week the notary shall certify in his
register the number of instruments executed, sworn
to, acknowledged, or protested before him; or if
none, such certificate shall show this fact.
A certified copy of each month's entries as
described in this section and a certified copy of
 any instrument acknowledged before them
shall within the first ten days of the month
next following be forwarded by the notaries
public to the clerk of the Court of First Instance
of the province and shall be filed under the
responsibility of such officer; Provided, that if there is
no entry to certify for the month, the notary shall
forward a statement to this effect in lieu of the
certified copies herein required. (As amended by C.A.
72, Sec. 1.)
SECTION 247. Disposition of notarial register.
Immediately upon his notarial register being
filled, and also within fifteen days after the
expiration of his commission, unless
reappointed, the notary public shall forward
his notarial register to the clerk of the Court of
First Instance of the province or of the City of
Manila, as the case may be, wherein he exercises
his office, who shall examine the same and report
thereon to the judge of the Court of First Instance. If
the judge finds that no irregularity has been
committed in the keeping of the register, he shall
forward the same to the chief of the division of
archives, patents, copyrights, and trade-marks.
In case the judge finds that irregularities have been
committed in the keeping of the register, he shall
refer the matter to the fiscal of the province and in
the City of Manila, to the fiscal of the city for
action and the sending of the register to the chief of
the division of archives, patents, copyrights, and
trade-marks shall be deferred until the termination of
the case against the notary public. (Emphasis and
underscoring supplied)
The Notarial Law mandates a notary public to record in his
notarial register the necessary information regarding the
instrument acknowledged before him. The Notarial Law also
mandates the notary public to retain a copy of the instrument
acknowledged before him when it is a contract. 20 The
notarial register is a record of the notary public's official acts.
Acknowledged instruments recorded in the notarial register
are public documents. 21 If the instrument is not recorded in
the notarial register and there is no copy in the notarial
records, the presumption arises that the document was not
notarized and is not a public document. 22
DECS should have produced at the trial the notarial register
where Judge Natividad as the notary public should have
recorded the deed of donation. Alternatively, DECS should
have explained the unavailability of the notarial register. Judge
Natividad could have also explained why he did not retain a
copy of the deed of donation as required by law. As the Court
of Appeals correctly observed, there was no evidence showing
that DECS looked for a copy from the Clerk of Court concerned
or from the National Archives. All told, these circumstances
preclude a finding that DECS or the Municipality made a
diligent search to obtain a copy of the deed of donation.
In civil cases, the party having the burden of proof must
establish his case by a preponderance of evidence.
"Preponderance of evidence" means that the evidence as a
whole adduced by one side is superior to that of the other. In
other words, preponderance of evidence means the greater
weight of the evidence or evidence that outweighs the
evidence of the adverse party. This Court is not satisfied that
the evidence on the side of the party carrying the burden of
proof is of preponderating weight.
Finally, DECS raises for the first time before this Court the
issue on whether respondents' claim is barred by the equitable
defense of laches. DECS did not raise this matter in the
complaint or during the trial in the court below. DECS did not
also raise this matter in its appeal to the Court of Appeals. This
Court cannot entertain this issue at this late stage, for to do so
would plainly violate the basic rule of fair play, justice and due
process. 23

Much as we sympathize with the plight of the school children,

we do not find reversible error in the Decision of the Court of
Appeals. We cannot grant the relief DECS is seeking and
disregard existing laws and jurisprudence. DECS, however, is
not without remedy. The government can expropriate at any
time the Donated Site, paying just compensation to
respondents.
WHEREFORE, we DENY the petition. The Decision dated 25
September 2000 and the Resolution dated 29 December 2000
of the Court of Appeals in CA-G.R. CV No. 43929 are
AFFIRMED.
SO ORDERED.
||| (Department of Education, Culture and Sports v. Del
Rosario, G.R. No. 146586, [January 26, 2005], 490 PHIL 193-
209)

FIRST DIVISION

[G.R. No. 168387. August 25, 2010.]

SALUN-AT MARQUEZ and NESTOR DELA

CRUZ, petitioners, vs. ELOISA ESPEJO, ELENITA
ESPEJO, EMERITA ESPEJO, OPHIRRO ESPEJO,
OTHNIEL ESPEJO, ORLANDO ESPEJO, OSMUNDO
ESPEJO, ODELEJO ESPEJO and NEMI
FERNANDEZ, respondents.

DECISION
DEL CASTILLO, J p:
When the parties admit the contents of written
documents but put in issue whether these documents
adequately and correctly express the true intention of the
parties, the deciding body is authorized to look beyond
these instruments and into the contemporaneous and
subsequent actions of the parties in order to determine such
intent.
Well-settled is the rule that in case of doubt, it is the
intention of the contracting parties that prevails, for the
intention is the soul of a contract, not its wording which is
prone to mistakes, inadequacies, or ambiguities. To hold
otherwise would give life, validity, and precedence to mere
typographical errors and defeat the very purpose of
agreements.
This Petition for Review on Certiorari 1 assails the
October 7, 2003 Decision, 2 as well as the May 11, 2005
Resolution 3 of the Court of Appeals (CA) in CA G.R. SP No.
69981. The dispositive portion of the appellate court's
Decision reads:
WHEREFORE, finding reversible error committed by
the Department of Agrarian Reform Adjudication
Board, the instant petition for review is GRANTED.
The assailed Decision, dated 17 January 2001,
rendered by the Department of Agrarian Reform
Adjudication Board is hereby ANNULLED and SET
ASIDE. The Decision of the Department of Agrarian
Reform Adjudication Board of Bayombong[,] Nueva
Vizcaya, dated 17 March 1998, is REINSTATED. Costs
against respondents.
SO ORDERED. 4
The reinstated Decision of the Department of Agrarian
Reform Adjudication Board (DARAB) of Bayombong, Nueva
Vizcaya, in turn, contained the following dispositive
portion: CHATEa
Accordingly, judgment is rendered:
1. Finding [respondents] to be the owner by re-
purchase from RBBI [of] the Murong property
covered by TCT No. [T-]62096 (formerly TCT No.
43258);
2. Ordering the cancellation of TCT with CLOA Nos.
395 and 396 in the name[s] of Salun-at Marquez
and Nestor de la Cruz respectively, as they are
disqualified to become tenants of the Lantap
property;
3. Directing RBBI to sell through VOS the Lantap
property to its rightful beneficiary, herein tenant-
farmer Nemi Fernandez under reasonable terms
and conditions;
4. Ordering RBBI to return the amount paid to it by
Nestor and Salun-at; and ordering the latter to
pay 20 cavans of palay per hectare at 46 kilos
per cavan unto [respondents] plus such accrued
and unpaid rentals for the past years as may be
duly accounted for with the assistance of the
Municipal Agrarian Reform Officer of Bagabag,
Nueva Vizcaya who is also hereby instructed to
assist the parties execute their leasehold
contracts and;
5. The order to supervise harvest dated March 11,
1998 shall be observed until otherwise modified
or dissolved by the appellate body.
SO ORDERED. 5
Factual Antecedents
Respondents Espejos were the original registered
owners of two parcels of agricultural land, with an area of
two hectares each. One is located at BarangayLantap,
Bagabag, Nueva Vizcaya (the Lantap property) while the
other is located inBarangay Murong, Bagabag, Nueva
Vizcaya (the Murong property). There is no dispute among
the parties that the Lantap property is tenanted by
respondent Nemi Fernandez (Nemi) 6 who is the
husband 7 of respondent Elenita Espejo (Elenita), while the
Murong property is tenanted by petitioners Salun-at Marquez
(Marquez) and Nestor Dela Cruz (Dela Cruz). 8
The respondents mortgaged both parcels of land to
Rural Bank of Bayombong, Inc. (RBBI) to secure certain
loans. Upon their failure to pay the loans, the mortgaged
properties were foreclosed and sold to RBBI. RBBI eventually
consolidated title to the properties and transfer certificates
of title (TCTs) were issued in the name of RBBI. TCT No. T-
62096 dated January 14, 1985 was issued for the Murong
property. It contained the following description:
Beginning at a point marked I on plan H-176292, S.
44034, W. 1656.31 m. more or less from B.L.L.M. No.
1, Bagabag Townsite, K-27,
thence N. 28 deg. 20 'E., 200.00 m. to point 2;
thence S. 61 deg. 40 'E., 100.00 m. to point 3;
thence S. 28 deg. 20 'W., 200.00 m. to point 4;
thence N. 61 deg. 40 'W., 100.00 m. to point l;
point of beginning;
Containing an area of 2.000 hectares. Bounded on
the northeast, by Road; on the southeast, and
southwest by public land; and on the northwest by
Public Land, properties claimed by Hilario Gaudia and
Santos Navarrete. Bearings true. Declination 0131 'E.
Points referred to are marked on plan H-176292.
Surveyed under authority of sections 12-22 Act No.
2874 and in accordance with existing regulations of
 the Bureau of Lands by H.O. Bauman Public Land
Surveyor, [in] December 1912-March 1913. Note: All
corners are Conc. Mons. 15x15x60 cm. This is Lot No.
79-A=Lot No. 159 of Bagabag Townsite, K-27. 9
Subsequently, TCT No. T-62836 dated June 4, 1985 was
issued for the Lantap property and contained the following
description:
Beginning at a point marked "1" on plan H-105520,
N. 80 deg. 32 'W., 1150.21 m. from BLLM No. 122,
Irrigation project,
thence N. 61 deg. 40'E., 200.00 m. to point
2; HCSEcI
thence N. 28 deg. 20'E., 100.00 m. to point 3;
thence S. 61 deg. 40'E., 200.00 m. to point 4;
thence S. 28 deg. 20'W., 100.00 m. to point 1;
point of beginning;
containing an area of 2.0000 hectares. Bounded on
the northeast, southeast, and southwest by Public
land; and on the northwest by Road and public land.
Bearings true. Declination 0 deg. 31'E., points
referred to are marked on plan H-105520. Surveyed
under authority of Section 12-22, Act No. 2874 and in
accordance with existing regulations of the Bureau of
Lands, by H.O. Bauman Public Land Surveyor, [in]
Dec. 1912-Mar. 1913 and approved on January 6,
1932. Note: This is Lot No. 119-A Lot No. 225
of Bagabag Townsite K-27. All corners are B.I. Conc.
Mons. 15x60 cm. 10
Both TCTs describe their respective subjects as located in
"Bagabag Townsite, K-27," without any reference to
either Barangay Lantap or Barangay Murong.
 On February 26, 1985, respondents Espejos bought
back one of their lots from RBBI. The Deed of
Sale 11 described the property sold as follows:
. . . do hereby SELL, TRANSFER, and CONVEY,
absolutely and unconditionally . . . that certain parcel
of land, situated in the Municipality of Bagabag,
Province of Nueva Vizcaya, and more particularly
bounded and described as follows, to wit:
Beginning at a point marked "1" on plan . . .
Containing an area of 2.000 hectares. Bounded
on the NE., by Road; on the SE., and SW by
Public Land; and on the NW., by Public Land,
properties claimed by Hilario Gaudia and Santos
Navarrete. Bearing true. Declination 013 'B.
Points referred to are marked on plan H-176292.
of which the Rural Bank of Bayombong (NV), Inc., is
the registered owner in fee simple in accordance with
the Land Registration Act, its title thereto
beingevidenced by Transfer Certificate of Title No. T-
62096 issued by the Registry of Deeds of Nueva
Vizcaya.
As may be seen from the foregoing, the Deed of Sale did not
mention the barangaywhere the property was located but
mentioned the title of the property (TCT No. T-62096), which
title corresponds to the Murong property. There is no
evidence, however, that respondents took possession of the
Murong property, or demanded lease rentals from the
petitioners (who continued to be the tenants of the Murong
property), or otherwise exercised acts of ownership over the
Murong property. On the other hand, respondent Nemi
(husband of respondent Elenita and brother-in-law of the
other respondents), continued working on the other property
the Lantap property without any evidence that he ever
paid rentals to RBBI or to any landowner. The Deed of Sale
was annotated on TCT No. T-62096 almost a decade later, on
July 1, 1994. 12 DAaEIc
Meanwhile, on June 20, 1990, RBBI, pursuant to Sections
20 13 and 21 14 ofRepublic Act (RA) No. 6657, 15 executed
separate Deeds of Voluntary Land Transfer(VLTs) in favor of
petitioners Marquez and Dela Cruz, the tenants of the
Murong property. Both VLTs described the subject thereof as
an agricultural land located inBarangay Murong and covered
by TCT No. T-62836 (which, however, is the title
corresponding to the Lantap property). 16
After the petitioners completed the payment of the
purchase price of P90,000.00 to RBBI, the DAR issued the
corresponding Certificates of Land Ownership Award (CLOAs)
to petitioners Marquez 17 and Dela Cruz 18 on September
5, 1991. Both CLOAs stated that their subjects were parcels
of agricultural land situated in BarangayMurong. 19 The
CLOAs were registered in the Registry of Deeds of Nueva
Vizcaya on September 5, 1991.
On February 10, 1997 (more than 10 years after the
Deed of Sale in favor of the respondents and almost seven
years after the execution of VLTs in favor of the petitioners),
respondents filed a Complaint 20 before the Regional
Agrarian Reform Adjudicator (RARAD) of Bayombong, Nueva
Vizcaya for the cancellation of petitioners' CLOAs, the
deposit of leasehold rentals by petitioners in favor of
respondents, and the execution of a deed of voluntary land
transfer by RBBI in favor of respondent Nemi. The complaint
was based on respondents' theory that the Murong property,
occupied by the petitioners, was owned by the respondents
by virtue of the 1985 buy-back, as documented in the Deed
of Sale. They based their claim on the fact that their Deed of
Sale refers to TCT No. 62096, which pertains to the Murong
property.
Petitioners filed their Answer 21 and insisted that they
bought the Murong property as farmer-beneficiaries thereof.
They maintained that they have always displayed good faith,
paid lease rentals to RBBI when it became the owner of the
Murong property, bought the same from RBBI upon the
honest belief that they were buying the Murong property,
and occupied and exercised acts of ownership over the
Murong property. Petitioners also argued that what
respondents Espejos repurchased from RBBI in 1985 was
actually the Lantap property, as evidenced by their
continued occupation and possession of the Lantap property
through respondent Nemi.
RBBI answered 22 that it was the Lantap property which
was the subject of the buy-back transaction with
respondents Espejos. It denied committing a grave mistake
in the transaction and maintained its good faith in the
disposition of its acquired assets in conformity with the rural
banking rules and regulations.
OIC-RARAD Decision 23
The OIC-RARAD gave precedence to the TCT numbers
appearing on the Deed of Sale and the VLTs. Since TCT No. T-
62096 appeared on respondents' Deed of Sale and the said
title refers to the Murong property, the OIC-RARAD
concluded that the subject of sale was indeed the Murong
property. On the other hand, since the petitioners' VLTs
referred to TCT No. T-62836, which corresponds to the
Lantap property, the OIC-RARAD ruled that petitioners'
CLOAs necessarily refer to the Lantap property. As for the
particular description contained in the VLTs that the subject
thereof is the Murong property, the OIC-RARAD ruled that it
was a mere typographical error. HSCATc
Further, since the VLTs covered the Lantap property and
petitioners are not the actual tillers thereof, the OIC-RARAD
declared that they were disqualified to become tenants of
the Lantap property and ordered the cancellation of their
CLOAs. It then ordered RBBI to execute a leasehold contract
with the real tenant of the Lantap property, Nemi.
 The OIC-RARAD recognized that petitioners' only right as
the actual tillers of the Murong property is to remain as the
tenants thereof after the execution of leasehold contracts
with and payment of rentals in arrears to respondents.
DARAB Decision 24
Upon appeal filed by petitioners, the DARAB reversed
the OIC-RARAD Decision. It ruled that in assailing the validity
of the CLOAs issued to petitioners as bona fidetenant-
farmers, the burden of proof rests on the respondents. There
being no evidence that the DAR field personnel were remiss
in the performance of their official duties when they issued
the corresponding CLOAs in favor of petitioners, the
presumption of regular performance of duty prevails. This
conclusion is made more imperative by the respondents'
admission that petitioners are the actual tillers of the
Murong property, hence qualified beneficiaries thereof.
As for respondents' allegation that they bought back the
Murong property from RBBI, the DARAB ruled that they failed
to support their allegation with substantial evidence. It gave
more credence to RBBI's claim that respondents
repurchased the Lantap property, not the Murong property.
Respondents, as owners of the Lantap property, were
ordered to enter into an agricultural leasehold contract with
their brother-in-law Nemi, who is the actual tenant of the
Lantap property.
The DARAB ended its January 17, 2001 Decision in this
wise:
We find no basis or justification to question the
authenticity and validity of the CLOAs issued to
appellants as they are by operation of law qualified
beneficiaries over the landholdings; there is nothing
to quiet as these titles were awarded in conformity
with the CARP program implementation; and finally,
the Board declares that all controverted claims to or
 against the subject landholding must be completely
and finally laid to rest.
WHEREFORE, premises considered and finding
reversible errors[,] the assailed decision is ANNULLED
and a new judgment is hereby rendered, declaring:
1. Appellants Salun-at Marquez and Nestor Dela Cruz
as the bona fide tenant-tillers over the Murong
property and therefore they are the qualified
beneficiaries thereof;
2. Declaring Transfer Certificate of Title (TCT) Nos.
395 and 396 issued in the name of [farmer-
beneficiaries] Salun-at Marquez and Nestor Dela Cruz
respectively, covered formerly by TCT No. 62096
(TCT No. 43258) of the Murong property as valid and
legal;
3. Ordering the co-[respondents] to firm-up an
agricultural leasehold contract with bona fide tenant-
tiller Nemi Fernandez over the Lantap property, [the
latter] being the subject matter of the 'buy back'
arrangement entered into between [respondents]
and Rural Bank of Bayombong, Incorporated, and
other incidental matters are deemed
resolved. TCEaDI
SO ORDERED. 25
Ruling of the Court of Appeals
In appealing to the CA, the respondents insisted that the
DARAB erred in ruling that they repurchased the Lantap
property, while the petitioners were awarded the Murong
property. They were adamant that the title numbers
indicated in their respective deeds of conveyance should
control in determining the subjects thereof. Since
respondents' Deed of Sale expressed that its subject is the
property with TCT No. T-62096, then what was sold to them
was the Murong property. On the other hand, petitioners'
VLTs and CLOAs say that they cover the property with TCT
No. T-62836; thus it should be understood that they were
awarded the Lantap property. Respondents added that since
petitioners are not the actual tillers of the Lantap property,
their CLOAs should be cancelled due to their lack of
qualification.
The CA agreed with the respondents. Using the Best
Evidence Rule embodied in Rule 130, Section 3, the CA held
that the Deed of Sale is the best evidence as to its contents,
particularly the description of the land which was the object
of the sale. Since the Deed of Sale expressed that its subject
is the land covered by TCT No. T-62096 the Murong
property then that is the property that the respondents
repurchased.
The CA further ruled that as for petitioners' VLTs, the
same refer to the property with TCT No. T-62836; thus, the
subject of their CLOAs is the Lantap property. The additional
description in the VLTs that the subject thereof is located
in BarangayMurong was considered to be a mere
typographical error. The CA ruled that the technical
description contained in the TCT is more accurate in
identifying the subject property since the same particularly
describes the properties' metes and bounds.
Both the RBBI 26 and petitioners 27 filed their
respective motions for reconsideration, which were
separately denied. 28
On June 22, 2004, RBBI filed a separate Petition for
Review on Certiorari, docketed as G.R. No. 163320, with this
Court. 29 RBBI raised the issue that the CA failed to
appreciate that respondents did not come to court with
clean hands because they misled RBBI to believe at the time
of the sale that the two lots were not tenanted. RBBI also
asked that they be declared free from any liability to the
parties as it did not enrich itself at anyone's expense. RBBI's
 petition was dismissed on July 26, 2004 for lack of merit. The
said Resolution reads:
Considering the allegations, issues[,] and arguments
adduced in the petition for review on certiorari, the
Court Resolves to DENY the petition for lack of
sufficient showing that the Court of Appeals had
committed any reversible error in the questioned
judgment to warrant the exercise by this Court of its
discretionary appellate jurisdiction in this
case. 30 ISDCHA
Their Motion for Reconsideration was likewise denied with
finality. 31 Entry of judgment was made in that case on
December 15, 2004. 32
On July 27, 2005, 33 petitioners filed the instant petition.
Issues
Rephrased and consolidated, the parties present the following
issues for the Court's determination:
I
What is the effect of the final judgment dismissing
RBBI's Petition for Review onCertiorari, which
assailed the same CA Decision
II
Whether the CA erred in utilizing the Best Evidence
Rule to determine the subject of the contracts
III
What are the subject properties of the parties'
respective contracts with RBBI SDTcAH
Our Ruling
Propriety of the Petition
 Respondents maintain that the instant petition for
review raises factual issues which are beyond the province
of Rule 45. 34
The issues involved herein are not entirely factual.
Petitioners assail the appellate court's rejection of their
evidence (as to the contractual intent) as inadmissible under
the Best Evidence Rule. The question involving the
admissibility of evidence is a legal question that is within the
Court's authority to review. 35
Besides, even if it were a factual question, the Court is
not precluded to review the same. The rule that a petition
for review should raise only questions of law admits of
exceptions, among which are "(1) when the findings are
grounded entirely on speculations, surmises, or conjectures;
(2) when the inference made is manifestly mistaken, absurd
or impossible; (3) when there is grave abuse of discretion;
(4) when the judgment is based on a misappreciation of
facts; (5) when the findings of fact areconflicting; (6) when,
in making its findings, the same are contrary to the
admissions of both appellant and appellee; (7) when the
findings are contrary to those of the trial court; (8) when the
findings are conclusions without citation of specific evidence
on which they are based; (9) when the facts set forth in the
petition as well as in the petitioner's main and reply briefs
are not disputed by the respondent; and (10) when the
findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record." 36
In the instant case, we find sufficient basis to apply the
exceptions to the general rule because the appellate court
misappreciated the facts of the case through its erroneous
application of the Best Evidence Rule, as will be discussed
below. Moreover, the disparate rulings of the three reviewing
bodies below are sufficient for the Court to exercise its
jurisdiction under Rule 45.
First Issue
 Dismissal of RBBI's appeal
Respondents maintain that the Court's earlier dismissal
of RBBI's petition for review of the same CA Decision is
eloquent proof that there is no reversible error in the
appellate court's decision in favor of the respondents. 37
We are not persuaded. This Court dismissed RBBI's
earlier petition in G.R. No. 163320 because it failed to
convincingly demonstrate the alleged errors in the CA
Decision. The bank did not point out the inadequacies and
errors in the appellate court's decision but simply placed the
responsibility for the confusion on the respondents for
allegedly misleading the bank as to the identity of the
properties and for misrepresenting that the two lots were
not tenanted. Thus, RBBI argued that respondents did not
come to court with clean hands. HcaDIA
These arguments were ineffectual in convincing the
Court to review the appellate court's Decision. It is the
appellant's responsibility to point out the perceived errors in
the appealed decision. When a party merely raises equitable
considerations such as the "clean hands" doctrine without a
clear-cut legal basis and cogent arguments to support his
claim, there should be no surprise if the Court is not swayed
to exercise its appellate jurisdiction and the appeal is
dismissed outright. The dismissal of an appeal does not
always and necessarily mean that the appealed decision is
correct, for it could simply be the result of the appellant's
inadequate discussion, ineffectual arguments, or even
procedural lapses.
RBBI's failure to convince the Court of the merits of its
appeal should not prejudice petitioners who were not parties
to RBBI's appeal, especially because petitioners duly filed a
separate appeal and were able to articulately and effectively
present their arguments. A party cannot be deprived of his
right to appeal an adverse decision just because another
party had already appealed ahead of him, 38 or just
because the other party's separate appeal had already been
dismissed. 39
There is another reason not to bind the petitioners to
the final judgment against RBBI. RBBI executed the transfer
(VLTs) in favor of petitioners prior to the commencement of
the action. Thus, when the action for cancellation of CLOA
was filed, RBBI had already divested itself of its title to the
two properties involved. Under the rule on res judicata, a
judgment (in personam) is conclusive only between the
parties and their successors-in-interest by
title subsequent to the commencement of the
action. 40 Thus, when the vendor (in this case RBBI) has
already transferred his title to third persons (petitioners), the
said transferees are not bound by any judgment which may
be rendered against the vendor. 41
Second Issue
Is it correct to apply the Best Evidence Rule?
Citing the Best Evidence Rule in Rule 130, Section 3, the
CA held that the Deed of Sale between respondents and
RBBI is the best evidence as to the property that was sold by
RBBI to the respondents. Since the Deed of Sale stated that
its subject is the land covered by TCT No. T-62096 the title
for the Murong property then the property repurchased by
the respondents was the Murong property. Likewise, the CA
held that since the VLTs between petitioners and RBBI refer
to TCT No. T-62836 the title for the Lantap property
then the property transferred to petitioners was the Lantap
property.
Petitioners argue that the appellate court erred in using
the best evidence rule to determine the subject of the Deed
of Sale and the Deeds of Voluntary Land Transfer. They
maintain that the issue in the case is not the contents of the
contracts but the intention of the parties that was not
adequately expressed in their contracts. Petitioners then
argue that it is the Parol Evidence Rule that should be
applied in order to adequately resolve the dispute.
Indeed, the appellate court erred in its application of the
Best Evidence Rule. The Best Evidence Rule states that when
the subject of inquiry is the contents of a document, the
best evidence is the original document itself and no other
evidence (such as a reproduction, photocopy or oral
evidence) is admissible as a general rule. The original is
preferred because it reduces the chance of undetected
tampering with the document. 42
In the instant case, there is no room for the application
of the Best Evidence Rule because there is no dispute
regarding the contents of the documents. It is admitted by
the parties that the respondents' Deed of Sale referred to
TCT No. T-62096 as its subject; while the petitioners' Deeds
of Voluntary Land Transfer referred to TCT No. T-62836 as its
subject, which is further described as located
in BarangayMurong. DSAICa
The real issue is whether the admitted contents of these
documents adequately and correctly express the true
intention of the parties. As to the Deed of Sale, petitioners
(and RBBI) maintain that while it refers to TCT No. T-62096,
the parties actually intended the sale of the Lantap property
(covered by TCT No. T-62836).
As to the VLTs, respondents contend that the reference
to TCT No. T-62836 (corresponding to the Lantap property)
reflects the true intention of RBBI and the petitioners, and
the reference to "Barangay Murong" was a typographical
error. On the other hand, petitioners claim that the reference
to "Barangay Murong" reflects their true intention, while the
reference to TCT No. T-62836 was a mere error. This dispute
reflects an intrinsic ambiguity in the contracts, arising from
an apparent failure of the instruments to adequately express
the true intention of the parties. To resolve the ambiguity,
resort must be had to evidence outside of the instruments.
 The CA, however, refused to look beyond the literal
wording of the documents and rejected any other evidence
that could shed light on the actual intention of the
contracting parties. Though the CA cited the Best Evidence
Rule, it appears that what it actually applied was the Parol
Evidence Rule instead, which provides:
When the terms of an agreement have been reduced
to writing, it is considered as containing all the terms
agreed upon and there can be, between the parties
and their successors in interest, no evidence of such
terms other than the contents of the written
agreement. 43
The Parol Evidence Rule excludes parol or extrinsic evidence
by which a party seeks to contradict, vary, add to or
subtract from the terms of a valid agreement or instrument.
Thus, it appears that what the CA actually applied in its
assailed Decision when it refused to look beyond the words
of the contracts was the Parol Evidence Rule, not the Best
Evidence Rule. The appellate court gave primacy to the
literal terms of the two contracts and refused to admit any
other evidence that would contradict such terms.
However, even the application of the Parol Evidence
Rule is improper in the case at bar. In the first place,
respondents are not parties to the VLTs executed between
RBBI and petitioners; they are strangers to the written
contracts. Rule 130, Section 9 specifically provides that parol
evidence rule is exclusive only as "between the parties and
their successors-in-interest." The parol evidence rule may
not be invoked where at least one of the parties to the suit is
not a party or a privy of a party to the written document in
question, and does not base his claim on the instrument or
assert a right originating in the instrument. 44
Moreover, the instant case falls under the exceptions to
the Parol Evidence Rule, as provided in the second
paragraph of Rule 130, Section 9: TcSAaH
 However, a party may present evidence to modify,
explain or add to the terms of the written agreement
if he puts in issue in his pleading:
(1) An intrinsic ambiguity, mistake or
imperfection in the written agreement;
(2) The failure of the written agreement to
express the true intent and agreement of
the parties thereto;
xxx xxx xxx (Emphasis supplied)
Here, the petitioners' VLTs suffer from intrinsic
ambiguity. The VLTs described the subject property as
covered by TCT No. T-62836 (Lantap property), but they also
describe the subject property as being located in
"Barangay Murong." Even the respondents' Deed of Sale
falls under the exception to the Parol Evidence Rule. It refers
to "TCT No. T-62096" (Murong property), but RBBI contended
that the true intent was to sell the Lantap property. In short,
it was squarely put in issue that the written agreement failed
to express the true intent of the parties.
Based on the foregoing, the resolution of the instant
case necessitates an examination of the parties' respective
parol evidence, in order to determine the true intent of the
parties. Well-settled is the rule that in case of doubt, it is the
intention of the contracting parties that prevails, for the
intention is the soul of a contract, 45 not its wording which
is prone to mistakes, inadequacies, or ambiguities. To hold
otherwise would give life, validity, and precedence to mere
typographical errors and defeat the very purpose of
agreements.
In this regard, guidance is provided by the following
articles of the Civil Code involving the interpretation of
contracts:
 Article 1370. If the terms of a contract are clear and
leave no doubt upon the intention of the contracting
parties, the literal meaning of its stipulations shall
control.
If the words appear to be contrary to the evident
intention of the parties, the latter shall prevail over
the former.
Article 1371. In order to judge the intention of the
contracting parties, their contemporaneous and
subsequent acts shall be principally considered.
Rule 130, Section 13 which provides for the rules on the
interpretation of documents is likewise enlightening:
Section 13. Interpretation according to
circumstances. For the proper construction of an
instrument, the circumstances under which it was
made, including the situation of the subject thereof
and of the parties to it, may be shown, so that the
judge may be placed in the position of those whose
language he is to interpret.
Applying the foregoing guiding rules, it is clear that the
Deed of Sale was intended to transfer the Lantap property to
the respondents, while the VLTs were intended to convey the
Murong property to the petitioners. This may be seen from
thecontemporaneous and subsequent acts of the
parties. aHcACT
Third issue
Determining the intention of the parties
regarding the subjects of their contracts
We are convinced that the subject of the Deed of Sale
between RBBI and the respondents was the Lantap
property, and not the Murong property. After the execution in
1985 of the Deed of Sale, the respondents did not exercise
acts of ownership that could show that they indeed knew
and believed that they repurchased the Murong property.
They did not take possession of the Murong property. As
admitted by the parties, the Murong property was in the
possession of the petitioners, who occupied and tilled the
same without any objection from the respondents. Moreover,
petitioners paid leasehold rentals for using the Murong
property to RBBI, not to the respondents.
Aside from respondents' neglect of their alleged
ownership rights over the Murong property, there is one
other circumstance that convinces us that what respondents
really repurchased was the Lantap property. Respondent
Nemi (husband of respondent Elenita) is the farmer actually
tilling the Lantap property, without turning over the
supposed landowner's share to RBBI. This strongly indicates
that the respondents considered themselves (and not RBBI)
as the owners of the Lantap property. For if respondents
(particularly spouses Elenita and Nemi) truly believed that
RBBI retained ownership of the Lantap property, how come
they never complied with their obligations as supposed
tenants of RBBI's land? The factual circumstances of the
case simply do not support the theory propounded by the
respondents.
We are likewise convinced that the subject of the Deeds
of Voluntary Land Transfer (VLTs) in favor of petitioners was
the Murong property, and not the Lantap property. When the
VLTs were executed in 1990, petitioners were already the
tenant-farmers of the Murong property, and had been paying
rentals to RBBI accordingly. It is therefore natural that the
Murong property and no other was the one that they had
intended to acquire from RBBI with the execution of the VLTs.
Moreover, after the execution of the VLTs, petitioners
remained in possession of the Murong property, enjoying
and tilling it without any opposition from anybody.
Subsequently, after the petitioners completed their payment
of the total purchase price of P90,000.00 to RBBI, the
Department of Agrarian Reform (DAR) officials conducted
their investigation of the Murong property which, with the
presumption of regularity in the performance of official duty,
did not reveal any anomaly. Petitioners were found to be in
actual possession of the Murong property and were the
qualified beneficiaries thereof. Thus, the DAR officials issued
CLOAs in petitioners' favor; and these CLOAs explicitly refer
to the land in Barangay Murong. All this time, petitioners
were in possession of the Murong property, undisturbed by
anyone for several long years, until respondents started the
controversy in 1997. CDHSac
All of these contemporaneous and subsequent actions of
RBBI and petitioners support their position that the subject
of their contract (VLTs) is the Murong property, not the
Lantap property. Conversely, there has been no contrary
evidence of the parties' actuations to indicate that they
intended the sale of the Lantap property. Thus, it appears
that the reference in their VLT to TCT No. T-62836 (Lantap
property) was due to their honest but mistaken belief that
the said title covers the Murong property. Such a mistake is
not farfetched considering that TCT No. T-62836 only refers
to the Municipality of Bayombong, Nueva Vizcaya, and does
not indicate the particular barangay where the property is
located. Moreover, both properties are bounded by a road
and public land. Hence, were it not for the detailed technical
description, the titles for the two properties are very similar.
The respondents attempt to discredit petitioners'
argument that their VLTs were intrinsically ambiguous and
failed to express their true intention by asking why
petitioners never filed an action for the reformation of their
contract. 46 A cause of action for the reformation of a
contract only arises when one of the contracting parties
manifests an intention, by overt acts, not to abide by the
true agreement of the parties. 47 It seems fairly obvious
that petitioners had no cause to reform their VLTs because
the parties thereto (RBBI and petitioners) never had any
dispute as to the interpretation and application thereof. They
both understood the VLTs to cover the Murong property (and
not the Lantap property). It was only much later, when
strangers to the contracts argued for a different
interpretation, that the issue became relevant for the first
time.
All told, we rule that the Deed of Sale dated February
26, 1985 between respondents and RBBI covers the Lantap
property under TCT No. T-62836, while the Deeds of
Voluntary Land Transfer and TCT Nos. CLOA-395 and CLOA-
396 of the petitioners cover the Murong property under TCT
No. T-62096. In consequence, the CA's ruling against RBBI
should not be executed as such execution would be
inconsistent with our ruling herein. Although the CA's
decision had already become final and executory as against
RBBI with the dismissal of RBBI's petition in G.R. No. 163320,
our ruling herein in favor of petitioners is a supervening
cause which renders the execution of the CA decision
against RBBI unjust and inequitable.
WHEREFORE, the Petition for Review
on Certiorari is GRANTED. The assailed October 7, 2003
Decision, as well as the May 11, 2005 Resolution of the
Court of Appeals in CA-G.R. SP No. 69981 are REVERSED
and SET ASIDE. The January 17, 2001 Decision of the
DARAB Central Office is REINSTATED. The Deed of Sale
dated February 26, 1985 between respondents and Rural
Bank of Bayombong, Inc. covers the Lantap property under
TCT No. T-62836, while the Deeds of Voluntary Land Transfer
and TCT Nos. CLOA-395 and CLOA-396 of the petitioners
cover the Murong property under TCT No. T-62096. The
Register of Deeds of Nueva Vizcaya is directed to make the
necessary corrections to the titles of the said properties in
accordance with this Decision. Costs against respondents.
SO ORDERED.
||| (Marquez v. Espejo, G.R. No. 168387, [August 25, 2010],
643 PHIL 341-365)

SECOND DIVISION

[G.R. No. 174466. July 14, 2008.]

ACI PHILIPPINES, INC., petitioner, vs. EDITHA C.

COQUIA, DOING BUSINESS IN THE NAME OF E.
CARDOZO COQUIA ENTERPRISE,respondent.

DECISION

TINGA, J p:
Petitioner ACI Philippines, Inc. 1 is engaged in the business of
manufacturing fiberglass, which is used in both commercial
and industrial equipment for thermal and acoustic insulation.
In 1993, it ceased from using silica sand in the manufacture of
fiberglass and started using instead recycled broken glass or
flint cullets to save on manufacturing costs. 2
Petitioner contracted with respondent Editha C. Coquia for the
purchase of one (1) lot of flint cullets, consisting of 2,500 to
3,000 metric tons, at a price of P4.20 per kilo under Purchase
Order No. 106211 3 dated 6 October 1994. Several deliveries
made by respondent were accepted and paid for by petitioner
at the unit price of P4.20 per kilo as indicated in Purchase
Order No. 106211. 4
However, on 28 October 1994, petitioner demanded the
reduction of the purchase price from P4.20 per kilo to P3.65
per kilo to which respondent acceded, albeit allegedly under
duress. Petitioner accordingly issued Purchase Order No.
106373 5 explicitly superseding Purchase Order No. 106211.
Deliveries were again made by respondent on 5, 8 and 12
November 1994 under Delivery Receipt Nos. 901, 719 and
735, 6 respectively. Petitioner accepted the deliveries but
refused to pay for them even at the reduced price of P3.65 per
kilo, demanding instead that the unit price be further reduced
to P3.10 per kilo. 7
Respondent then filed a Complaint 8 for specific performance
and damages against petitioner seeking payment for the
deliveries made under Delivery Receipt Nos. 901, 719 and
735, amounting to 46,390 kilos at the renegotiated price of
P3.65 per kilo. Respondent further demanded that petitioner
be directed to accept and pay for the remaining deliveries to
complete the one (1) lot of flint cullets originally contracted
for. acHETI
On 26 November 1994, three (3) days after the complaint
against it was filed, petitioner paid for the flint cullets under
Delivery Receipt Nos. 901, 719 and 735 at the unit price of
P3.65 per kilo.
Ruling in favor of the respondent, the trial court ordered
petitioner to accept deliveries of the flint cullets contracted for
under Purchase Order No. 106211 and to pay for the said
deliveries within ten (10) days from each delivery at the unit
price of P4.20 per kilo. It further directed petitioner to pay
P2,540,300.00 in damages plus interest at the legal rate from
the time of the filing of the complaint on 23 November 1994
until fully paid. The trial court also awarded respondent
attorney's fees in the amount of P200,000.00, litigation
expenses in the amount of P20,000.00 and costs of suit.
The Court of Appeals affirmed the decision of the trial court
but deleted the award of attorney's fees, litigation expenses
and costs of suit. In its Decision 9 dated 15 September 2005,
the appellate court held that Purchase Order No. 106211 is a
contract of adhesion whose terms must be strictly construed
against petitioner. It also deemed as contrary to the original
agreement, which pegged the unit price of flint cullets at P4.20
per kilo, petitioner's willful refusal to pay for the deliveries
unless the price is reduced, for which petitioner should be held
liable. prcd
The appellate court denied petitioner's Partial Motion for
Reconsideration, 10 as well as respondent's Urgent Ex
Parte Application for Attachment, 11 in its Resolution 12 dated
30 August 2006.
Petitioner claims that the Court of Appeals erred in ruling that
Purchase Order No. 106211 is a contract of adhesion despite
the fact that respondent is an established businesswoman who
has the freedom to negotiate the terms and conditions of any
contract she enters into. It stresses that Purchase Order No.
106211 was superseded by Purchase Order No. 106373 and
that in both contracts, it was made clear to respondent that
her assurance of prompt delivery of the flint cullets motivated
the transaction.
Petitioner asserts that the appellate court erred in affirming
the trial court's decision which compelled it to accept and pay
for the deliveries at the price of P4.20 per kilo and at the same
required it to pay damages representing respondent's alleged
unrealized profits. It also alleges that the appellate court
erroneously applied Article 21 of the Civil Code despite the
existence of purchase orders which should govern the
contractual obligations of the parties.
Apart from stating that petitioner appears to have shut down
its operations, respondent's Comment 13 dated 12 January
2007 merely reiterates her position that Purchase Order No.
106373 was a product of intimidation practiced upon her by
petitioner. ECaITc
In its Reply 14 dated 22 April 2007, petitioner asserts that its
juridical personality continues to subsist despite the change of
its corporate name from ACI Philippines, Inc. to Asia Pacific
Insulation Corporation. It emphasizes that Purchase Order No.
106211 is not a contract of adhesion and should be considered
valid and binding considering that the parties voluntarily
executed the same and that, furthermore, Purchase Order No.
106211 had already been superseded by Purchase Order No.
106373.
Petitioner maintains that it did not exercise any intimidation on
respondent to force the latter to acquiesce to the new
purchase order and that assuming that it did, the resultant
voidable contract was ratified by respondent's delivery of the
flint cullets and the fact that the Statement of Account dated
28 October and 16 November 1994 sent by respondent to
petitioner already reflected the reduced unit price of P3.65 per
kilo.
Petitioner also maintains that it entered into a contract with
respondent upon the latter's assurance that she could
promptly deliver the 2,500-3,000 metric tons of flint cullets
required by petitioner. However, it believes that the trial court
and the appellate court erroneously refused to receive
evidence aliunde to prove that time was an important element
of the agreement. ESDHCa
The Court of Appeals identified the three issues for resolution:
(1) whether petitioner may be bound to accept the deliveries
of washed cullets from respondent; (2) what is the unit price
applicable; and (3) who is entitled to damages. Central to
these issues is the soundness of the appellate court's
pronouncement that the purchase orders in question are
contracts of adhesion whose terms must be strictly construed
against petitioner.
A contract of adhesion is one wherein a party, usually a
corporation, prepares the stipulations in the contract, and the
other party merely affixes his signature or his "adhesion"
thereto. Through the years, the courts have held that in this
type of contract, the parties do not bargain on equal footing,
the weaker party's participation being reduced to the
alternative to take it or leave it. Thus, adhesion contracts are
viewed as traps for the weaker party whom the courts of
justice must protect. However, we have also been steadfast in
reminding courts to be careful in their evaluation of allegations
of blind adherence to contracts. 15
There is every indication in this case that respondent, a
presumably astute businesswoman who has dealings with big
corporations such as La Tondea as the latter's sole buyer of
cullets and has the financial savvy to obtain a loan from a
bank, 16gave her assent to Purchase Order No. 106211 with
full knowledge. She was, in fact, the one who sought a
contract with petitioner upon learning of the latter's need for a
supply of flint cullets. Respondent testified: HcTSDa
Q: Could you tell the Court how you were able to get
this PO?
A: I went to ACI, sir.
Q: You went to ACI because you have knowledge that
they were in need of flint cullets?
A: Yes, sir.
Q: And who told you that ACI is in need of flint
cullets?
A: With information, I learned that ACI is in need of
cullets, so I went to ACI.
Q: You went to ACI to see a person, who is that
person?
A: I went to see ACI that I will deliver cullets, and
then I was ordered to go to the purchasing
department, sir.
Q: When you went to ACI, you said to deliver cullets?
A: To sell cullets, sir. 17
We cannot, therefore, apply the rule on contracts of adhesion
in construing the provisions of the purchase orders in this
case. Even the conditions of purchase enumerated at the
reverse side of the purchase orders, which uniformly provide
ACIDSc
1. Acknowledgement by the Vendor to the Purchaser
or any delivery made by the Vendor pursuant to
this order shall constitute acceptance by the
Vendor of this order and a contract between the
Vendor and the Purchaser in terms of this order
to the exclusion of all other terms and conditions
between them.
2. The Vendor guarantees the goods ordered to be of
merchantable quality and condition and this
condition shall apply notwithstanding any
examination of the goods by or on behalf of the
Purchaser. Any stipulation as to the quality of
goods is also a condition of any contract arising
from this order. If a sample of the goods has
been made available to the Purchaser then
contract arising from this order shall have
contract for sale by sample as well as a contract
for sale by descriptions.
3. The prices stated in this order are firm prices save
that any reduction in price resulting from a
reduction in customs duties or sales tax from
those in force at the date hereof is to be allowed
to the Purchase in reduction of the price agreed
hereunder.
4. Delivery of the goods must be made at the
Purchaser's address shown on the face of this
order or as otherwise directed, on a working day
between the hours of 8:00 and 3:30 p.m. Until
delivery the goods shall be at the Vendor's risk.
 Any delivery date shown on this order shall be of
the essence of any contract arising. Delivery
must be made in strict accordance with the order
or delivery schedule and any quantities delivered
in excess of that specified on the order may be
returned by the Purchaser at the Vendor's risk
and expense. SIcCEA

5. All goods must be suitably packed or otherwise

prepared for delivery to the satisfaction of the
carrier. No charges are to be made for wrapping
packing cartons boxes or crating unless
authorized by this order.
6. The Purchaser may without prejudice to any other
rights at any time after delivery of the good
reject them if on inspection the Purchaser
considers them not to be in conformity with any
contract arising from this order. Goods rejected
will be held at the vendor's risk and are
returnable at the Vendor's risk and expense.
7. All drawings, blueprints, tools or patterns furnished
in connection with this order at any time, are
confidential to the Vendor and Purchaser and
shall be used solely to complete this contract or
any other contract relating to the products
between the Vendor and the Purchaser, and for
no other purpose, except with the prior consent
in writing of the Purchaser, and shall remain the
property of the Purchaser and be returned to the
Purchaser on demand. The Vendor shall not
without the written prior approval of the
Purchaser furnish to any third party any goods
for the manufacture of which drawings,
blueprints, tools, patterns, specifications or
 samples have been supplied to the Vendor by
the Purchaser, or manufacture such articles
except for the Purchaser. This restriction shall
continue notwithstanding termination of this
order. aSIHcT
8. The Purchaser reserves the right to cancel or
suspend this order or any part thereof, if the
goods are not delivered according to deliveries
as specified, or if the Purchaser is unable to
accept delivery for any cause beyond the
Purchaser's control. The Purchaser further
reserves the right to cancel this order if the
goods are not in accordance with drawings,
blueprints, approved samples or specifications,
or are defective in workmanship or material or
are not otherwise satisfactory to the Purchaser.
9. Vendor warrants that the sale to the Purchaser and
the use by the Purchaser of the goods in any way
will not infringe any patent, [trademark],
[copyright], industrial design or process of
manufacture, and covenants that Vendor will, at
Vendor's own expense, upon demand of
Purchaser, investigate and deal with every claim
and/or suit or action, which may be brought
against Purchaser or against those selling or
using any goods or products of Purchaser for any
alleged infringement or claim of infringement of
any patent, [trademark], [copyright], industrial
design, or process of manufacture by reason of
the sale or use of the goods by the Purchaser
and will pay all costs[,] damages and expenses
which Purchaser may sustain by reason of any
such claim and/or suit [or] action. aCSEcA
10. Invoices quoting this Order number and Vendor's
packing slip numbers are required for each
 individual order and shipment, and shall be
mailed to the Purchaser not later than the day of
despatch of the goods. All products shall be
accompanied by original packing slips. Overseas
Vendors must render an additional certified
invoice for Philippines Customs purposes.
Negotiable bills of lading or consignment notes
properly signed by the Carrier must be attached
to the Vendor's invoices.
11. Waiver by the Purchaser of any specific defaults
by the Vendor, or failure of the Purchaser to
cancel this order or any part thereof when such a
right arises shall not constitute a waiver by the
Purchaser of any of the conditions of this order
except such defaults as are specifically waived
and then only in respect of the actual
defaults. 18
do not reveal any hint of one-sidedness in favor of
petitioner.
If anything, in fact, Condition 4 above seems to have worked
to petitioner's disadvantage as it underpins the refusal of the
trial court to accept evidence aliunde to show that time was of
the essence in the transaction. The said condition specifically
mentions that the "delivery date shown on (the purchase
order) shall be of the essence of any contract arising" and that
"delivery must be made in strict accordance with the order or
delivery schedule. . ." Purchase Order No. 106211, however, is
unusually silent as to the date the flint cullets are
needed. DHaEAS
Petitioner remedied this seeming inadvertence by squarely
raising the failure of the purchase order to express the true
intent of the parties, i.e., that petitioner entered into a
contract with respondent conditioned upon the latter's prompt
delivery of flint cullets, as an issue in its Answer with
Counterclaims. 19 Unfortunately, the trial court sustained
respondent's objection based on the parol evidence rule.
It is a cardinal rule of evidence, not just one of technicality but
of substance, that the written document is the best evidence
of its own contents. It is also a matter of both principle and
policy that when the written contract is established as the
repository of the parties' stipulations, any other evidence is
excluded and the same cannot be used as a substitute for
such contract, nor even to alter or contradict them. 20 This
rule, however, is not without exception. Section 9, Rule 130 of
the Rules of Court states that a party may present evidence to
modify, explain or add to the terms of the agreement if he
puts in issue in his pleading the failure of the written
agreement to express the true intent and agreement of the
parties. Since an exception to the parol evidence rule was
squarely raised as an issue in the answer, the trial court
should not have been so inflexible as to completely disregard
petitioner's evidence. SADECI
Sifting through the testimony of respondent, we find that
although she was not given definite days during which she
should deliver the flint cullets, she was indeed apprised of
petitioner's urgent need for large quantities
thereof. 21 Furthermore, petitioner presented the unrebutted
testimony of Ermilinda Batalon, its materials control manager,
to prove that it agreed to the P4.20 per kilo purchase price
only because respondent assured it of prompt deliveries
sufficient for petitioner's production requirements. 22These
testimonies give us a more complete picture of the transaction
between the parties and allow for a more reasoned resolution
of the issues, without over-reliance on the tenuous application
of the rule on contracts of adhesion.
Coming now to the second purchase order, we find that
Purchase Order No. 106211 had indeed been superseded by
Purchase Order No. 106373 as the latter plainly states.
Respondent testified that the deliveries of flint cullets on 28
October 1994 and on subsequent dates were already covered
by the new purchase order which did indicate the reduced unit
price but did not mention the quantity to be delivered. She
said:
Q: And of course you were told by Mrs. Batalon that
the PO that will be issued to you is an open PO?
Atty. Tanopo:
What do you mean by open PO?
Atty. Buyco:
It does not indicate the quantity that will deliver.
Q: There is no quantity mentioned as to how much
you are going to deliver, you deliver as they
come. [I]n other words at P3.65?
A: Yes, sir.
Q: So much so that your subsequent deliveries after
October 28 is already on the basis of this PO?
A: Yes, sir.
Q: Exhibit D?
A: Yes, sir.
Q: Now, your counsel earlier manifested that he filed
this complaint on November 24, 1994, it was
after November 23, 1994 Mrs. Coquia [sic] that
there were developments that substantially
affected the allegations in this complaint, like
substantial payments made by you by ACI,
Philippines? IECcaA
Atty. Tanopo:
Counsel may show us, your Honor.
Court:
Counsel may stipulate.
 Q: Did the deliveries of invoices no. [901, 719] and
735[,] Exhibits F, F1 and F2 has already been
paid by the plaintiff?
Atty. Tanopo:
Admitted, paid at the rate of P3.65. 23 EAHDac
Clearly, respondent knew, at the time she made the deliveries
on 28 October 1994 and thereafter, that Purchase Order No.
106373 would already govern the transaction. Significantly,
payments on these deliveries were made by petitioner on 26
November and 8 December 1994, after the complaint for
specific performance was filed and without respondent making
as much as a whimper of protest against the terms of the new
purchase order or the reduced purchase price indicated
therein.
By acquiescing to the new purchase order which no longer
indicated a specific quantity of flint cullets to be delivered,
respondent knew or should be presumed to have known that
deliveries made thereafter were no longer meant to complete
the original quantity contracted for under Purchase Order No.
106211.
The foregoing leads us to resolve the first and second issues
framed by the Court of Appeals in favor of petitioner. Petitioner
accepted deliveries under Purchase Order No. 106211 on 8,
12, 15, 18, 20 and 22 October 1994 and paid for these
deliveries in accordance with the terms of the purchase
order, i.e., at the contract price of P4.20 per kilo. However, the
original contract between the parties evidenced by Purchase
Order No. 106211 was unequivocally novated by Purchase
Order No. 106373, thereby extinguishing the original
obligation of petitioner to accept deliveries from respondent
until the 2,500-3,000 metric tons of flint cullets originally
contracted for is filled. 24 Petitioner, therefore, cannot be
compelled to accept more deliveries of flint cullets from
respondent to complete the quantity originally contracted
for. ESDHCa
By the same token, petitioner cannot be tied down to the
P4.20 per kilo unit price under Purchase Order No. 106211, nor
even to the P3.65 per kilo indicated in Purchase Order No.
106373, the latter contract not having stated the quantity
petitioner is willing to accept delivery of and pay for under that
price.
As regards damages, we find the award thereof to respondent
to be without factual basis. Respondent sought to prove the
actual damages she incurred merely through her own
testimony, without adducing any documentary evidence to
substantiate her alleged losses. While she claims that she
obtained a bank loan at an interest rate of 21%, respondent
did not present any document to prove the said loan or the
use thereof to purchase flint cullets for delivery to petitioner.
Neither did respondent present documents to prove her
alleged stock of 1,000 metric tons of flint cullets for which she
allegedly invested P2,500,000.00. IAEcCa

The claim for actual damages in this case should be admitted

with extreme caution since it is based only on bare assertions
without support from independent evidence. In determining
actual damages, the Court cannot rely on mere assertions,
speculations, conjectures or guesswork but must depend on
competent proof and on the best evidence obtainable
regarding the actual amount of loss. 25
Finally, we find the appellate court's citation of Article 21 of
the Civil Code misplaced not only because of the pre-existing
contractual relation between the parties which bars the
application of this provision, but more importantly because we
do not deem petitioner to have acted fraudulently or in bad
faith. 26
WHEREFORE, the Decision of the Court of Appeals in CA-G.R.
CV No. 57678 dated 15 September 2005, and its Resolution
dated 30 August 2006 are REVERSED. The complaint dated 23
November 1994 filed by Editha C. Coquia against ACI
Philippines, Inc. is hereby DISMISSED. No pronouncement as to
costs. TAcCDI
SO ORDERED.
||| (ACI Philippines, Inc. v. Coquia, G.R. No. 174466, [July 14,
2008], 580 PHIL 275-288)

THIRD DIVISION

[G.R. No. 164326. October 17, 2008.]

SEAOIL PETROLEUM
CORPORATION, petitioner, vs. AUTOCORP GROUP
and PAUL Y. RODRIGUEZ, respondents.

DECISION

NACHURA, J p:
Before this Court is a Petition for Review
on Certiorari under Rule 45 of the Rules of Court assailing
the Decision 1 of the Court of Appeals (CA) dated May 20,
2004 in CA-G.R. CV No. 72193, which had affirmed in
toto the Decision 2 of the Regional Trial Court (RTC) of Pasig
City, Branch 157, dated September 10, 2001 in Civil Case
No. 64943. DCcSHE
The factual antecedents, as summarized by the CA, are
as follows:
 On September 24, 1994, defendant-appellant
Seaoil Petroleum Corporation (Seaoil, for brevity)
purchased one unit of ROBEX 200 LC Excavator,
Model 1994 from plaintiff-appellee Autocorp Group
(Autocorp for short). The original cost of the unit
was P2,500,000.00 but was increased to
P3,112,519.94 because it was paid in 12 monthly
installments up to September 30, 1995. The sales
agreement was embodied in the Vehicle Sales
Invoice No. A-0209 and Vehicle Sales Confirmation
No. 258. Both documents were signed by Francis Yu
(Yu for short), president of Seaoil, on behalf of said
corporation. Furthermore, it was agreed that despite
delivery of the excavator, ownership thereof was to
remain with Autocorp until the obligation is fully
settled. In this light, Seaoil's contractor, Romeo
Valera, issued 12 postdated checks. However,
Autocorp refused to accept the checks because they
were not under Seaoil's name. Hence, Yu, on behalf
of Seaoil, signed and issued 12 postdated checks for
P259,376.62 each with Autocorp as payee.
The excavator was subsequently delivered on
September 26, 1994 by Autocorp and was received
by Seaoil in its depot in Batangas.
The relationship started to turn sour when the
first check bounced. However, it was remedied
when Seaoil replaced it with a good check. The
second check likewise was also good when
presented for payment. However, the remaining 10
checks were not honored by the bank since Seaoil
requested that payment be stopped. It was downhill
from thereon. EcHaAC
Despite repeated demands, Seaoil refused to
pay the remaining balance of P2,593,766.20. Hence,
on January 24, 1995, Autocorp filed a complaint for
recovery of personal property with damages and
replevin in the Regional Trial Court of Pasig. The trial
court ruled for Autocorp. Hence, this appeal.
Seaoil, on the other hand, alleges that the
transaction is not as simple as described above. It
claims that Seaoil and Autocorp were only utilized
as conduits to settle the obligation of one foreign
entity named Uniline Asia (herein referred to as
Uniline), in favor of another foreign entity, Focus
Point International, Incorporated (Focus for short).
Paul Rodriguez (Rodriguez for brevity) is a
stockholder and director of Autocorp. He is also the
owner of Uniline. On the other hand, Yu is the
president and stockholder of Seaoil and is at the
same time owner of Focus. Allegedly, Uniline
chartered MV Asia Property(sic) in the amount of
$315,711.71 from its owner Focus. Uniline was not
able to settle the said amount. Hence, Uniline,
through Rodriguez, proposed to settle the obligation
through conveyance of vehicles and heavy
equipment. Consequently, four units of Tatamobile
pick-up trucks procured from Autocorp were
conveyed to Focus as partial payment. The
excavator in controversy was allegedly one part of
the vehicles conveyed to Focus. Seaoil claims that
Rodriguez initially issued 12 postdated checks in
favor of Autocorp as payment for the excavator.
However, due to the fact that it was company policy
for Autocorp not to honor postdated checks issued
by its own directors, Rodriguez requested Yu to
issue 12 PBCOM postdated checks in favor of
Autocorp. In turn, said checks would be funded by
the corresponding 12 Monte de Piedad postdated
checks issued by Rodriguez. These Monte de Piedad
checks were postdated three days prior to the
maturity of the PBCOM checks. aETADI
 Seaoil claims that Rodriguez issued a stop
payment order on the ten checks thus constraining
the former to also order a stop payment order on
the PBCOM checks.
In short, Seaoil claims that the real transaction
is that Uniline, through Rodriguez, owed money to
Focus. In lieu of payment, Uniline instead agreed to
convey the excavator to Focus. This was to be paid
by checks issued by Seaoil but which in turn were to
be funded by checks issued by Uniline. . . . 3
As narrated above, respondent Autocorp filed a
Complaint for Recovery of Personal Property with Damages
and Replevin 4 against Seaoil before the RTC of Pasig City. In
its September 10, 2001 Decision, the RTC ruled that the
transaction between Autocorp and Seaoil was a simple
contract of sale payable in installments. 5 It also held that
the obligation to pay plaintiff the remainder of the purchase
price of the excavator solely devolves on Seaoil. Paul
Rodriguez, not being a party to the sale of the excavator,
could not be held liable therefor. The decretal portion of the
trial court's Decision reads, thus:
WHEREFORE, judgment is hereby rendered in
favor of plaintiff Autocorp Group and against
defendant Seaoil Petroleum Corporation which is
hereby directed to pay plaintiff:
P2,389,179.23 plus 3% interest from the time
of judicial demand until full payment; and
25% of the total amount due as attorney's
fees and cost of litigation.
The third-party complaint filed by defendant
Seaoil Petroleum Corporation against third-party
defendant Paul Rodriguez is hereby DISMISSED for
lack of merit. CTHaSD
SO ORDERED.
 Seaoil filed a Petition for Review before the CA. In its
assailed Decision, the CA dismissed the petition and
affirmed the RTC's Decision in toto. 6 It held that the
transaction between Yu and Rodriguez was merely verbal.
This cannot alter the sales contract between Seaoil and
Autocorp as this will run counter to the parol evidence rule
which prohibits the introduction of oral and parol evidence to
modify the terms of the contract. The claim that it falls
under the exceptions to the parol evidence rule has not been
sufficiently proven. Moreover, it held that Autocorp's
separate corporate personality cannot be disregarded and
the veil of corporate fiction pierced. Seaoil was not able to
show that Autocorp was merely an alter ego of Uniline or
that both corporations were utilized to perpetrate a fraud.
Lastly, it held that the RTC was correct in dismissing the
third-party complaint since it did not arise out of the same
transaction on which the plaintiff's claim is based, or that
the third party's claim, although arising out of another
transaction, is connected to the plaintiff's claim. Besides, the
CA said, such claim may be enforced in a separate action.
Seaoil now comes before this Court in a Petition for
Review raising the following issues:
I
Whether or not the Court of Appeals erred in
partially applying the parol evidence rule to prove
only some terms contained in one portion of the
document but disregarded the rule with respect to
another but substantial portion or entry also
contained in the same document which should have
proven the true nature of the transaction
involved. IHaSED
II
Whether or not the Court of Appeals gravely
erred in its judgment based on misapprehension of
 facts when it declared absence of facts which are
contradicted by presence of evidence on record.
III
Whether or not the dismissal of the third-party
complaint would have the legal effect of res
judicata as would unjustly preclude petitioner from
enforcing its claim against respondent Rodriguez
(third-party defendant) in a separate action. SICaDA
IV
Whether or not, given the facts in evidence, the
lower courts should have pierced the corporate veil.
The Petition lacks merit. We sustain the ruling of the CA.
We find no fault in the trial court's appreciation of the
facts of this case. The findings of fact of the trial court are
conclusive upon this Court, especially when affirmed by the
CA. None of the exceptions to this well-settled rule has been
shown to exist in this case. IcCATD
Petitioner does not question the validity of the vehicle
sales invoice but merely argues that the same does not
reflect the true agreement of the parties. However,
petitioner only had its bare testimony to back up the alleged
arrangement with Rodriguez.
The Monte de Piedad checks the supposedly "clear
and obvious link" 7between the documentary evidence and
the true transaction between the parties are equivocal at
best. There is nothing in those checks to establish such link.
Rodriguez denies that there is such an agreement. cdrep
Unsubstantiated testimony, offered as proof of verbal
agreements which tends to vary the terms of a written
agreement, is inadmissible under the parol evidence rule. 8
Rule 130, Section 9 of the Revised Rules on Evidence
embodies the parol evidence rule and states:
 SEC. 9. Evidence of written agreements.
When the terms of an agreement have been
reduced to writing, it is considered as containing all
the terms agreed upon and there can be, between
the parties and their successors-in-interest, no
evidence of such terms other than the contents of
the written agreement. HTacDS
However, a party may present evidence to
modify, explain or add to the terms of the written
agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or
imperfection in the written agreement;
(b) The failure of the written agreement to
express the true intent and agreement of the
parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by
the parties or their successors-in-interest after the
execution of the written agreement.
The term "agreement" includes wills.
The parol evidence rule forbids any addition to, or
contradiction of, the terms of a written agreement by
testimony or other evidence purporting to show that
different terms were agreed upon by the parties, varying the
purport of the written contract. 9
This principle notwithstanding, petitioner would have
the Court rule that this case falls within the exceptions,
particularly that the written agreement failed to express the
true intent and agreement of the parties. This argument is
untenable. cCHITA
Although parol evidence is admissible to explain the
meaning of a contract, it cannot serve the purpose of
incorporating into the contract additional contemporaneous
conditions which are not mentioned at all in the writing
unless there has been fraud or mistake. 10 Evidence of a
prior or contemporaneous verbal agreement is generally not
admissible to vary, contradict or defeat the operation of a
valid contract. 11
The Vehicle Sales Invoice 12 is the best evidence of the
transaction. A sales invoice is a commercial document.
Commercial documents or papers are those used by
merchants or businessmen to promote or facilitate trade or
credit transactions. 13Business forms,e.g., order slip,
delivery charge invoice and the like, are commonly
recognized in ordinary commercial transactions as valid
between the parties and, at the very least, they serve as an
acknowledgment that a business transaction has in fact
transpired. 14 These documents are not mere scraps of
paper bereft of probative value, but vital pieces of evidence
of commercial transactions. They are written memorials of
the details of the consummation of contracts. 15
The terms of the subject sales invoice are clear. They
show that Autocorp sold to Seaoil one unit Robex 200 LC
Excavator paid for by checks issued by one Romeo Valera.
This does not, however, change the fact that Seaoil
Petroleum Corporation, as represented by Yu, is the
customer or buyer. The moment a party affixes his or her
signature thereon, he or she is bound by all the terms
stipulated therein and is subject to all the legal obligations
that may arise from their breach. 16
Oral testimony on the alleged conditions, coming from a
party who has an interest in the outcome of the case,
depending exclusively on human memory, is not as reliable
as written or documentary evidence. 17
Hence, petitioner's contention that the document falls
within the exception to the parol evidence rule is untenable.
The exception obtains only where "the written contract is
so ambiguous or obscure in terms that the contractual
intention of the parties cannot be understood from a mere
reading of the instrument. In such a case, extrinsic evidence
of the subject matter of the contract, of the relations of the
parties to each other, and of the facts and circumstances
surrounding them when they entered into the contract may
be received to enable the court to make a proper
interpretation of the instrument." 18
Even assuming there is a shred of truth to petitioner's
contention, the same cannot be made a basis for holding
respondents liable therefor. CTcSIA
As pointed out by the CA, Rodriguez is a person
separate and independent from Autocorp. Whatever
obligations Rodriguez contracted cannot be attributed to
Autocorp 19 and vice versa. In fact, the obligation that
petitioner proffers as its defense under the Lease
Purchase Agreement was not even incurred by Rodriguez
or by Autocorp but by Uniline.
The Lease Purchase Agreement 20 clearly shows that
the parties thereto are two corporations not parties to this
case: Focus Point and Uniline. Under this Lease Purchase
Agreement, it is Uniline, as lessee/purchaser, and not
Rodriguez, that incurred the debt to Focus Point. The
obligation of Uniline to Focus Point arose out of a transaction
completely different from the subject of the instant
case. EICScD
It is settled that a corporation has a personality separate
and distinct from its individual stockholders or members,
and is not affected by the personal rights, obligations and
transactions of the latter. 21 The corporation may not be
held liable for the obligations of the persons composing it,
and neither can its stockholders be held liable for its
obligation. 22
Of course, this Court has recognized instances when the
corporation's separate personality may be disregarded.
However, we have also held that the same may only be
done in cases where the corporate vehicle is being used to
defeat public convenience, justify wrong, protect fraud, or
defend crime. 23 Moreover, the wrongdoing must be clearly
and convincingly established. It cannot be presumed. 24
To reiterate, the transaction under the Vehicle Sales
Invoice is separate and distinct from that under the Lease
Purchase Agreement. In the former, it is Seaoil that owes
Autocorp, while in the latter, Uniline incurred obligations to
Focus. There was never any allegation, much less any
evidence, that Autocorp was merely an alter ego of Uniline,
or that the two corporations' separate personalities were
being used as a means to perpetrate fraud or
wrongdoing. aSTcCE
Moreover, Rodriguez, as stockholder and director of
Uniline, cannot be held personally liable for the debts of the
corporation, which has a separate legal personality of its
own. While Section 31 of the Corporation Code 25 lays down
the exceptions to the rule, the same does not apply in this
case. Section 31 makes a director personally liable for
corporate debts if he willfully and knowingly votes for or
assents to patently unlawful acts of the corporation. Section
31 also makes a director personally liable if he is guilty of
gross negligence or bad faith in directing the affairs of the
corporation. 26 The bad faith or wrongdoing of the director
must be established clearly and convincingly. Bad faith is
never presumed. 27
The burden of proving bad faith or wrongdoing on the
part of Rodriguez was, on petitioner, a burden which it failed
to discharge. Thus, it was proper for the trial court to have
dismissed the third-party complaint against Rodriguez on
the ground that he was not a party to the sale of the
excavator. TcSHaD
Rule 6, Section 11 of the Revised Rules on Civil
Procedure defines a third-party complaint as a claim that a
defending party may, with leave of court, file against a
person not a party to the action, called the third-party
defendant, for contribution, indemnity, subrogation or any
other relief, in respect of his opponent's claim.
The purpose of the rule is to permit a defendant to
assert an independent claim against a third party which he,
otherwise, would assert in another action, thus preventing
multiplicity of suits. 28 Had it not been for the rule, the
claim could have been filed separately from the original
complaint. 29
Petitioner's claim against Rodriguez was fully ventilated
in the proceedings before the trial court, tried and decided
on its merits. The trial court's ruling operates as res
judicata against another suit involving the same parties and
same cause of action. This is rightly so because the trial
court found that Rodriguez was not a party to the sale of the
excavator. On the other hand, petitioner Seaoil's liability has
been successfully established by respondent. EISCaD
A last point. We reject Seaoil's claim that "the ownership
of the subject excavator, having been legally and completely
transferred to Focus Point International, Inc., cannot be
subject of replevin and plaintiff [herein respondent Autocorp]
is not legally entitled to any writ of replevin." 30 The claim is
negated by the sales invoice which clearly states that
"[u]ntil after the vehicle is fully paid inclusive of bank
clearing time, it remains the property of Autocorp Group
which reserves the right to take possession of said vehicle at
any time and place without prior notice." 31
Considering, first, that Focus Point was not a party to the
sale of the excavator and, second, that Seaoil indeed failed
to pay for the excavator in full, the same still rightfully
belongs to Autocorp. Additionally, as the trial court found,
Seaoil had already assigned the same to its contractor for
the construction of its depot in Batangas. 32Hence, Seaoil
has already enjoyed the benefit of the transaction even as it
 has not complied with its obligation. It cannot be permitted
to unjustly enrich itself at the expense of another. EaISDC
WHEREFORE, the foregoing premises considered, the
Petition is hereby DENIED. The Decision of the Court of
Appeals dated May 20, 2004 in CA-G.R. CV No. 72193 is
AFFIRMED.
SO ORDERED.
||| (Seaoil Petroleum Corporation v. Autocorp Group, G.R. No.
164326, [October 17, 2008], 590 PHIL 410-423)

SECOND DIVISION

[G.R. No. 199740. March 24, 2014.]

PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. JERRY OBOGNE,accused-appellant.

RESOLUTION

DEL CASTILLO, J p:
Appellant Jerry Obogne was charged with the crime of rape in
an Information that reads as follows:
That on or about the 29th day of July 2002, in the
afternoon, in barangay Ogbong, municipality of Viga,
province of Catanduanes, Philippines, within the
jurisdiction of the Honorable Court, the said accused
by means of force and intimidation, willfully,
unlawfully and feloniously . . . succeeded in having
carnal knowledge of "AAA", 1 a 12-year old mentally
retarded person, to the damage and prejudice of the
said "AAA". 2
When arraigned on December 17, 2004, appellant entered a
plea of not guilty. 3 On March 13, 2008, the Regional Trial
Court of Virac, Catanduanes, Branch 43, rendered a
Judgment, 4 viz.:
WHEREFORE, judgment is, hereby, rendered finding
Jerry Obogne guilty beyond reasonable doubt of the
crime of simple rape committed against "AAA" and,
hereby, sentences him to suffer a penalty
of reclusion perpetua and to indemnify "AAA" the
amount of P50,000.00 as civil indemnity, P50,000.00
as moral damages, and P25,000.00 as exemplary
damages; and to pay the costs.
SO ORDERED. 5 HCaIDS
The trial court did not consider "AAA's" mental retardation as a
qualifying circumstance considering that the Information failed
to allege that appellant knew of "AAA's" mental disability.
Aggrieved, appellant appealed to the Court of Appeals. 6 In its
Decision 7 of March 28, 2011, the appellate court affirmed the
trial court's ruling with modifications, viz.:
WHEREFORE, the appeal is DISMISSED. The
Judgment, dated March 13, 2008, of the Regional
Trial Court of Virac, Catanduanes, Branch 34, 8 in
Criminal Case No. 3303, is AFFIRMED with
MODIFICATION that accused-appellant is further
ordered to pay "AAA" the additional amount of
P50,000.00 as civil indemnity apart from the award
of P50,000.00 as moral damages and of P25,000.00
as exemplary damages.
SO ORDERED. 9
Hence, this appeal.
In a Resolution 10 dated February 15, 2012, we required both
parties to file their Supplemental Briefs. However, they opted
to adopt the briefs they filed before the Court of Appeals as
their Supplemental Briefs. 11
Appellant argues that the testimony of "AAA" deserves no
credence because she was incapable of intelligently making
known her perception to others by reason of her mental
disability.
We are not persuaded.
Sections 20 and 21, Rule 130 of the Rules of Court provide:
Sec. 20. Witnesses; their qualifications. Except
as provided in the next succeeding section, all
persons who can perceive, and perceiving, can make
known their perception to others, may be witnesses.
xxx xxx xxx
Sec. 21. Disqualification by reason of mental
incapacity or immaturity. The following persons
cannot be witnesses:
(a) Those whose mental condition, at the time of
their production for examination, is such that they
are incapable of intelligently making known their
perception to others;
(b) Children whose mental maturity is such as to
render them incapable of perceiving the facts
respecting which they are examined and of relating
them truthfully. SaIEcA
In this case, "AAA" is totally qualified to take the witness stand
notwithstanding her mental condition. As correctly observed
by the trial court:
When "AAA" was presented on November 14, 2006,
defense counsel manifested his objection and called
the Court's attention to Rule 130, Section 21 of
the Rules of Court,which lists down persons who
cannot be witnesses; i.e., those whose mental
condition, at the time of their production for
examination, is such that they are incapable of
intelligently making known their perception to
others . . . .
During the continuation of AAA's testimony . . . she
was able to recall what [appellant] did to her . . . .
"AAA" recalled that while she was playing,
[appellant] saw her and asked her to go with him
because he would give her a sugar cane. [Appellant]
brought "AAA" to his house and while inside, 'he
removed her panty, and then inserted his penis into
her vagina and he got the knife and then he took a
sugar cane and then he gave it to her and then she
went home.'
xxx xxx xxx
This Court finds "AAA" a very credible witness, even
in her mental condition. Contrary to defense
counsel's objection that "AAA" was not capable of
intelligently making known her perception to others,
"AAA" managed to recount the ordeal she had gone
through in the hands of the accused, though in a soft
voice and halting manner . . . .
"AAA's" simple account of her ordeal clearly reflects
sincerity and truthfulness.
While it is true that, on cross-examination, "AAA"
faltered in the sequence of events . . . this is
understandable because even one with normal
mental condition would not be able to recall, with a
hundred percent accuracy, events that transpired in
the past. But "AAA" was certain that 'it was a long
time . . . after the incident' when it was reported to
the police. Likewise, she was very certain that the
accused inserted his penis into her vagina . . . . 12
 In the same vein, the appellate court found "AAA" qualified
to take the witness stand,viz.: CIAHDT
Our own evaluation of the records reveals that "AAA"
was shown to be able to perceive, to make known
her perception to others and to remember traumatic
incidents. Her narration of the incident of rape given
in the following manner is worthy of note:
xxx xxx xxx
Private complainant "AAA" provided a clear,
convincing and competent testimonial evidence to
prove the guilt of the accused-appellant of the crime
of rape beyond reasonable doubt. As found by the
trial court, the testimony of "AAA" was replete with
consistent details, negating the probability of
fabrication.
We stress that, contrary to accused-appellant's
assertions, mental retardation per se does not affect
a witness' credibility. A mental retardate may be a
credible witness. 13
Appellant's assertion that the trial court and the appellate
court should have considered his alibi must likewise fail. For
alibi to prosper, it must not only be shown that appellant was
at another place at the time of the commission of the crime
but that it was also impossible for him to be present at the
crime scene. In this case, appellant attempted to show that he
was at barangay Ananong at the time of the rape incident.
However, as found by the trial court, the distance
between barangay Ananong and barangay Ogbong is only four
kilometers and could be traversed in one hour or even
less. 14 HIaSDc
Finally, the trial court and the Court of Appeals correctly found
appellant guilty of simple rape and properly imposed upon him
the penalty of reclusion perpetua pursuant to Article 266-B,
par. 1 of the Revised Penal Code. The trial court correctly ruled
that "AAA's" mental disability could not be considered as a
qualifying circumstance because the Information failed to
allege that appellant knew of such mental condition at the
time of the commission of the crime. As held in People v.
Limio: 15
By itself, the fact that the offended party in a rape
case is a mental retardate does not call for the
imposition of the death penalty, unless knowledge by
the offender of such mental disability is specifically
alleged and adequately proved by the prosecution.
For the Anti-Rape Law of 1997, now embodied in
Article 266-B of the Revised Penal Code (RPC)
expressly provides that the death penalty shall also
be imposed if the crime of rape is committed with
the qualifying circumstance of '(10) when the
offender knew of the mental disability, emotional
disorder and/or physical handicap of the offended
party at the time of the commission of the crime.'
Said knowledge . . . qualifies rape as a heinous
offense. Absent said circumstance, which must be
proved by the prosecution beyond reasonable doubt,
the conviction of appellant for qualified rape under
Art. 266-B (10), RPC, could not be
sustained, although the offender may be held
liable for simple rape and sentenced
to reclusion perpetua. 16
xxx xxx xxx
[T]he mere fact that the rape victim is a mental
retardate does not automatically merit the imposition
of the death penalty. Under Article 266-B (10) of the
Revised Penal Code, knowledge by the offender of
the mental disability, emotional disorder, or physical
handicap at the time of the commission of the rape is
the qualifying circumstance that sanctions the
 imposition of the death penalty. As such this
circumstance must be formally alleged in the
information and duly proved by the
prosecution. aITECA
Rule 110 of the 2000 Rules of Criminal Procedure
requires both qualifying and aggravating
circumstances to be alleged with specificity in the
information. . . . But in the absence of a specific or
particular allegation in the information that the
appellant knew of her mental disability or
retardation, as well as lack of adequate proof that
appellant knew of this fact, Article 266-B (10), RPC,
could not be properly applied . . .
Hence, the appellant can only be convicted of simple
rape, as defined under Article 266-A of the [Revised]
Penal Code, for which the imposable penalty
isreclusion perpetua. 17
However, it must be mentioned that appellant is not eligible
for parole pursuant to Section 3 18 of Republic Act No.
9346. 19
The awards of P50,000.00 as moral damages and P50,000.00
as civil indemnity are likewise proper. However, the award of
exemplary damages must be increased to P30,000.00 in line
with prevailing jurisprudence. 20 Also, interest at the rate of
6% per annum shall be imposed from date of finality of this
judgment until fully paid.
WHEREFORE, the March 28, 2011 Decision of the Court of
Appeals in CA-G.R. CR H.C. No. 03270 finding appellant Jerry
Obogne guilty beyond reasonable doubt of the crime of simple
rape and sentencing him to suffer the penalty of reclusion
perpetua and to pay "AAA" civil indemnity of P50,000.00 and
moral damages of P50,000.00
is AFFIRMED withMODIFICATIONS that appellant is not
eligible for parole; the amount of exemplary damages is
increased to P30,000.00; and all damages awarded shall earn
interest at the rate of 6% per annum from date of finality of
this judgment until fully paid.
SO ORDERED. aSTAcH
||| (People v. Obogne, G.R. No. 199740 (Resolution), [March
24, 2014])

EN BANC

[G.R. No. 138471. October 10, 2002.]

PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. MANUEL PRUNA y RAMIREZ or
ERMAN PRUNA y RAMIREZ, accused-appellant.

The Solicitor General for plaintiff-appellee.

Eliodoro Baluyot for accused-appellant.

SYNOPSIS

Accused-appellant was charged with sexually violating Lizette

Arabelle Gonzales, a 3-year-old minor, on January 3, 1995.
Appellant denied the charge against him and interposed the
defense of alibi. The trial court, however, gave credence to the
testimony of the complainant and rejected appellant's
defense. It convicted appellant of rape in its qualified form and
sentenced him to death.
Hence, this automatic review.
Among others, appellant assailed the competency of Lizette to
testify by reason of her tender age.
The Supreme Court held that the question of competency of a
child-witness rests primarily in the sound discretion of the trial
court. This is so because the trial judge sees the proposed
witness and observes his manner of testifying, his apparent
possession or lack of intelligence, as well as his understanding
of the obligation of an oath. Since many of the witness'
manners cannot be photographed into the record, the findings
of the trial judge will not be disturbed or reversed unless from
what is preserved it is clear that such finding was erroneous. In
this case, appellant questioned the competency of Lizette as a
witness solely on the ground of her age. However, the Court
found that he failed to discharge the burden of showing her
mental immaturity. From her testimony, it can be gleaned that
she had the capacity of observation, recollection, and
communication and that she could discern the consequence of
telling a lie. The Court, therefore, sustained the trial court in
admitting her testimony and according it great weight. Indeed,
a girl of such age as Lizette would not concoct a story of
defloration; allow the examination of her private parts; and
undergo the expense, trouble, inconvenience, and the trauma
of a public trial unless she was in fact raped. Accordingly, the
Court affirmed appellant's conviction but only for the crime of
statutory rape punishable by reclusion perpetua for failure of
the prosecution to establish with certainty that the
complainant was below 7-years old at the time of the
commission of the crime.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; WITNESSES; PRESUMED

COMPETENT. As a general rule, when a witness takes the
witness stand, the law, on ground of public policy, presumes
that he is competent. The court cannot reject the witness in
the absence of proof of his incompetency. The burden is,
therefore, upon the party objecting to the competency of a
witness to establish the ground of incompetency.
2. ID.; ID.; ID.; COMPETENCY OF CHILD-WITNESS; TEST OF
COMPETENCY IS INTELLIGENCE, NOT AGE. Section 21 of
Rule 130 of the Rules on Evidence enumerates the persons
who are disqualified to be witnesses. Among those disqualified
are "[c]hildren whose mental maturity is such as to render
them incapable of perceiving the facts respecting which they
are examined and relating them truthfully." No precise
minimum age can be fixed at which children shall be excluded
from testifying. The intelligence, not the age, of a young child
is the test of the competency as a witness. It is settled that a
child, regardless of age, can be a competent witness if he can
perceive and, in perceiving, can make known his perception to
others and that he is capable of relating truthfully the facts for
which he is examined.
3. ID.; ID.; ID.; ID.; FACTORS IN DETERMINING A CHILD'S
COMPETENCY. In determining the competency of a child
witness, the court must consider his capacity (a) at the time
the fact to be testified to occurred such that he could receive
correct impressions thereof; (b) to comprehend the obligation
of an oath; and (c) to relate those facts truly to the court at the
time he is offered as a witness. The examination should show
that the child has some understanding of the punishment
which may result from false swearing. The requisite
appreciation of consequences is disclosed where the child
states that he knows that it is wrong to tell a lie, and that he
would be punished if he does so, or that he uses language
which is equivalent to saying that he would be sent to hell for
false swearing. A child can be disqualified only if it can be
shown that his mental maturity renders him incapable of
perceiving facts respecting which he is being examined and of
relating them truthfully.
4. ID.; ID.; ID.; ID.; FINDING OF TRIAL JUDGE WILL NOT BE
DISTURBED OR REVERSED UNLESS CLEARLY ERRONEOUS;
CASE AT BAR. The question of competency of a child-
witness rests primarily in the sound discretion of the trial
court. This is so because the trial judge sees the proposed
witness and observes his manner of testifying, his apparent
possession or lack of intelligence, as well as his understanding
of the obligation of an oath. Since many of the witness'
manners cannot be photographed into the record, the finding
of the trial judge will not be disturbed or reversed unless from
what is preserved it is clear that such finding was erroneous. In
this case, appellant questions the competency of LIZETTE as a
witness solely on the ground of her age. He failed to discharge
the burden of showing her mental immaturity. From the
testimony, it can be gleaned that LIZETTE had the capacity of
observation, recollection, and communication and that she
could discern the consequence of telling a lie. We, therefore,
sustain the trial court in admitting her testimony and
according it great weight.
5. ID.; ID.; CREDIBILITY OF WITNESSES; VICTIMS OF CRIMINAL
VIOLENCE HAVE A LASTING IMPRESSION OF THE MANNER IN
WHICH THE CRIME WAS COMMITTED AND THE IDENTITY OF
THE PERSON RESPONSIBLE THEREFOR; CASE AT BAR. We
are not persuaded by appellant's assertion that LIZETTE
should not be allowed to testify two years after the alleged
rape "when the interplay of frail memory combines with the
imagination of earlier years." It must be noted that it is a most
natural reaction for victims of criminal violence to have a
lasting impression of the manner in which the crime was
committed and the identity of the person responsible therefor.
6. ID.; ID.; ID.; TESTIMONY OF RAPE VICTIM WHO IS OF TENDER
AGE IS CREDIBLE AND DESERVES FULL CREDIT ESPECIALLY
ABSENT A MOTIVE TO TESTIFY FALSELY AGAINST ACCUSED.
In a string of cases, we have said that the testimony of a rape
victim who is of young or tender age is credible and deserves
full credit, especially where no motive is attributed to the
victim that would make her testify falsely against the accused.
Indeed, a girl of such age as LIZETTE would not concoct a story
of defloration; allow the examination of her private parts; and
undergo the expense, trouble, inconvenience, and the trauma
of a public trial unless she was in fact raped.
7. ID.; ID.; ID.; TESTIMONY OF WITNESS NOT INDISPENSABLE;
RAPE VICTIM'S TESTIMONY IF CREDIBLE, IS SUFFICIENT FOR
CONVICTION; CASE AT BAR. Even assuming that the
testimony of Jacqueline is hearsay, its non-admission would
not save the day for the appellant. Such testimony is not
indispensable, as it merely serves to corroborate LIZETTE's
testimony that PRUNA laid her down in the grass and inserted
his private organ into hers. As discussed earlier, LIZETTE's
testimony, which was found to be credible by the trial court, is
sufficient basis for conviction.
8. ID.; ID.; ID.; VICTIM'S IMMEDIATE REVELATION OF THE
INCIDENT AND THE IDENTITY OF HER DEFILER, EARMARKS OF
THE TRUTH OF THE RAPE CHARGE. At any rate, Jacqueline's
testimony is proof of the victim's conduct immediately after
the rape. It shows that LIZETTE immediately revealed to her
mother the rape incident and the identity of her defiler. Such
conduct is one of the earmarks of the truth of the charge of
rape.
9. ID.; ID.; ID.; RAPE VICTIM IS NOT EXPECTED TO REMEMBER
ALL THE UGLY DETAILS OF THE OUTRAGE COMMITTED AGAINST
HER. When a girl or a woman says that she has been raped
she says in effect all that is necessary to show that rape was
truly committed. She is not expected to remember all the ugly
details of the outrage committed against her. And when her
testimony passes the test of credibility, the accused can be
convicted on the basis thereof, for in most cases it is the only
evidence that can be offered to establish his guilt.
10. ID.; ID.; ID.; MOTIVE; A MOTHER WOULD NOT SUBJECT HER
CHILD TO HUMILIATION, DISGRACE AND EVEN STIGMA
ATTENDANT TO A PROSECUTION FOR RAPE UNLESS SHE IS
MOTIVATED BY THE DESIRE TO BRING TO JUSTICE THE PERSON
RESPONSIBLE FOR HER CHILD'S DEFILEMENT. The defense,
through Carlito, attempted to impute motive to Jacqueline in
filing against PRUNA the charge of rape. According to him,
LIZETTE's grandparents, the Sulits, wanted to buy the place of
the PRUNA family, but the latter refused. Aside from the fact
that such testimony was not corroborated, said motive, if at
all, is too flimsy to be even considered. No mother in her right
mind would use her offspring as an engine of malice. She
would not subject her child to the humiliation, disgrace, and
even the stigma attendant to a prosecution for rape unless she
is motivated by the desire to bring to justice the person
responsible for her child's defilement.
11. ID.; ID.; HEARSAY EVIDENCE RULE; TESTIMONY OF PERSON
WHO TESTIFIES TO FACTS LEARNED FROM THIRD PERSON NOT
SWORN AS A WITNESS TO THOSE FACTS IS INADMISSIBLE.
Contrary to appellant's contention, Jacqueline's testimony that
LIZETTE told her that appellant laid her in the grassy area and
inserted his penis into her vagina is not covered by the
hearsay evidence rule, which finds application when the
declarant does not testify. This rule, as enunciated under
Section 36, Rule 130 of the Rules on Evidence, provides that a
witness can testify only to those facts which he knows of his
personal knowledge except as otherwise provided in the Rules
of Court. The term "hearsay" as used in the law on evidence,
signifies evidence which is not founded upon the personal
knowledge of the witness from whom it is elicited and which
consequently does not depend wholly for its credibility and
weight upon the confidence which the court may have in him;
its value, if any, is measured by the credit to be given to some
third person not sworn as a witness to that fact, and
consequently not subject to cross-examination. If one
therefore testifies to facts which he learned from a third
person not sworn as a witness to those facts, his testimony is
inadmissible as hearsay evidence.
12. ID.; ID.; ID; REASON FOR EXCLUSION; RULE NOT
APPLICABLE WHERE THE PERSON TO WHOM THE STATEMENTS
ARE ATTRIBUTED TESTIFIED IN COURT; CASE AT BAR. The
reason for the exclusion of hearsay evidence is that the party
against whom the hearsay testimony is presented is deprived
of the right or opportunity to cross-examine the person to
whom the statements are attributed. Moreover, the court is
without opportunity to test the credibility of hearsay
statements by observing the demeanor of the person who
made them. In the instant case, the declarant (LIZETTE)
herself was sworn as a witness to the fact testified to by
Jacqueline. The appellant even cross-examined her (LIZETTE).
Moreover, the trial court had the opportunity to observe her
manner of testifying. Hence, Jacqueline's testimony on the
incident related to her by her daughter cannot be disregarded
as hearsay evidence.
13. ID.; ID.; ALIBI; TO PROSPER, ACCUSED MUST PROVE THAT
HE WAS IN ANOTHER PLACE DURING THE COMMISSION OF THE
CRIME AND IT WAS PHYSICALLY IMPOSSIBLE FOR HIM TO BE AT
THE CRIME SCENE; CASE AT BAR. The trial court correctly
disregarded the defense of alibi raised by the accused. We
have consistently held that for alibi to prosper, it must be
proved that during the commission of the crime, the accused
was in another place and that it was physically impossible for
him to be at the crime scene. Just like denial, alibi is an
inherently weak defense; and unless supported by clear and
convincing evidence, the same cannot prevail over the
positive declaration of the victim. We have also held that when
alibi is established only by the accused, his relatives, or close
friends, the same should be treated with strictest scrutiny.
Carlito, who was admittedly a close friend of appellant's
parents, corroborated PRUNA's testimony that he (PRUNA) was
in his house during the time that LIZETTE was raped. It is,
however, an established fact that the place where the rape
occurred was just a few meters away from the house of
PRUNA. Thus, there was no physical impossibility for PRUNA to
be in the grassy area to consummate the crime of rape.
14. CRIMINAL LAW; RAPE; PRESENCE OF SPERM CELLS IN THE
VAGINAL CANAL AND URINE OF THE VICTIM STRENGTHENS
THE VICTIM'S CLAIM OF RAPE; CASE AT BAR. By and large,
the medical evidence lends credence to LIZETTE's testimony
that PRUNA inserted his penis into her vagina. The Medico-
Legal Report shows that there was hyperemia or reddening of
the vaginal opening of LIZETTE. As opined by Dr. Quiroz, who
was presented as an expert witness, hyperemia can be caused
by the insertion of a hard object like penis and finger. The
presence of sperm cells in the vaginal canal and urine of
LIZETTE is also a mute testimony of the sexual contact that
further strengthens LIZETTE's claim of rape.
15. ID; STATUTORY RAPE; FINDING OF RAPE NOT PRECLUDED
BY ABSENCE OF FRESH LACERATIONS ESPECIALLY WHEN THE
VICTIM IS OF TENDER AGE. This Court is not oblivious of the
finding that no laceration was found in LIZETTE's organ despite
the fact that she was examined immediately after she was
raped. We have already ruled, however, that the absence of
fresh lacerations does not preclude the finding of rape,
especially when the victim is of tender age. Well-settled is the
rule that rape is consummated by the slightest penile
penetration of the labia or pudendum of the female.
16. ID.; ID.; MINORITY OF THE VICTIM; FAILURE TO ESTABLISH
THE VICTIM'S AGE BARS CONVICTION FOR RAPE IN ITS
QUALIFIED FORM. Article 335, seventh paragraph, no. 4, of
the Revised Penal Code, as amended by Republic Act No.
7659, provides that the death penalty shall be imposed if the
crime of rape is committed against a "child below seven (7)
years old." We have held that in such a case the minority of
the victim must be proved with equal certainty and clearness
as the crime itself. The failure to sufficiently establish the
victim's age is fatal and consequently bars conviction for rape
in its qualified form.
17. ID.; ID.; ID.; APPRECIATION OF THE VICTIM'S AGE EITHER
AS AN ELEMENT OF THE CRIME OR AS A QUALIFYING
CIRCUMSTANCE; GUIDELINES. In order to remove any
confusion . . ., We hereby set the following guidelines in
appreciating age, either as an element of the crime or as a
qualifying circumstance. 1. The best evidence to prove the age
of the offended party is an original or certified true copy of the
certificate of live birth of such party. 2. In the absence of a
certificate of live birth, similar authentic documents such as
baptismal certificate and school records which show the date
of birth of the victim would suffice to prove age 3. If the
certificate of live birth or authentic document is shown to have
been lost or destroyed or otherwise unavailable, the
testimony, if clear and credible, of the victim's mother or a
member of the family either by affinity or consanguinity who is
qualified to testify on matters respecting pedigree such as the
exact age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall be
sufficient under the following circumstances: a. If the victim is
alleged to be below 3 years of age and what is sought to be
proved is that she is less than 7 years old; b. If the victim is
alleged to be below 7 years of age and what is sought to be
proved is that she is less than 12 years old; c. If the victim is
alleged to be below 12 years of age and what is sought to be
proved is that she is less than 18 years old. 4. In the absence
of a certificate of live birth, authentic document, or the
testimony of the victim's mother or relatives concerning the
victim's age, the complainant's testimony will suffice provided
that it is expressly and clearly admitted by the accused. 5. It is
the prosecution that has the burden of proving the age of the
offended party. The failure of the accused to object to the
testimonial evidence regarding age shall not be taken against
him. The trial court should always make a categorical finding
as to the age of the victim.
18. ID.; ID.; ID.; BURDEN OF PROVING THE VICTIM'S AGE LIES
ON THE PROSECUTION; LACK OF OBJECTION ON THE PART OF
THE DEFENSE AS TO VICTIM'S AGE DOES NOT EXCUSE THE
PROSECUTION FROM DISCHARGING ITS BURDEN; IMPOSITION
OF DEATH PENALTY, NOT PROPER IN CASE AT BAR. For
PRUNA to be convicted of rape in its qualified form and meted
the supreme penalty of death, it must be established with
certainty that LIZETTE was below 7 years old at the time of the
commission of the crime. It must be stressed that the severity
of the death penalty, especially its irreversible and final nature
once carried out, makes the decision-making process in capital
offenses aptly subject to the most exacting rules of procedure
and evidence. In view of the uncertainty of LIZETTE's exact
age, corroborative evidence such as her birth certificate,
baptismal certificate or any other authentic document should
be introduced in evidence in order that the qualifying
circumstance of "below seven (7) years old" is appreciated
against the appellant. The lack of objection on the part of the
defense as to her age did not excuse the prosecution from
discharging its burden. That the defense invoked LIZETTE's
tender age for purposes of questioning her competency to
testify is not necessarily an admission that she was below 7
years of age when PRUNA raped her on 3 January 1995. Such
being the case, PRUNA cannot be convicted of qualified rape,
and hence the death penalty cannot be imposed on him.
19. ID.; ID.; CARNAL KNOWLEDGE OF WOMAN UNDER 12
YEARS OLD PUNISHABLE BYRECLUSION PERPETUA, NOT
DEATH; CASE AT BAR. However, conformably with no. 3(b) of
the guidelines, the testimony of LIZETTE's mother that she was
3 years old at the time of the commission of the crime is
sufficient for purposes of holding PRUNA liable for statutory
rape, or rape of a girl below 12 years of age. Under the second
paragraph of Article 335, as amended by R.A. No. 7659, in
relation to no. 3 of the first paragraph thereof, having carnal
knowledge of a woman under 12 years of age is punishable
byreclusion perpetua. Thus, the penalty to be imposed on
PRUNA should be reclusion perpetua, and not death penalty.
20. CIVIL LAW; CIVIL INDEMNITY; MORAL DAMAGES AWARDED
WITHOUT NEED OF PLEADING OR PROOF. As regards the
civil liability of PRUNA, the indemnity in the amount of P50,000
awarded by the trial court is not sufficient. In accordance with
recent jurisprudence, LIZETTE should also be awarded moral
damages in the amount of P50,000 without need of pleading
or proof because the mental, physical and psychological
trauma suffered by her is too obvious. EcHIAC

DECISION

DAVIDE, JR., C.J p:

A rosebud that had been snuffed out of its fragrance long
before it could even blossom into a flower. Such is the case of
Lizette Arabelle Gonzales (hereafter LIZETTE), who had been
defiled at a very tender age. She was at the time voiding her
body waste at their neighbor's backyard, but that did not deter
herein appellant from imposing his lechery on her. Indeed, lust
is no respecter of time and place. 1
On 27 January 1995, an information 2 for rape was filed
against accused-appellant Manuel Pruna y Ramirez or Erman
Pruna y Ramirez (hereafter PRUNA), the accusatory portion of
which reads:
That on or about January 3, 1995 at Sitio Tabing-ilog,
Brgy. Panilao, Pilar, Bataan, Philippines, and within
the jurisdiction of this Honorable Court, the said
accused thru force and intimidation, did then and
there willfully, unlawfully and feloniously lie and
succeed to have sexual intercourse with the offended
party, Lizette Arabelle Gonzales, a 3-year-old minor
 girl, against the will and consent of the latter, to her
damage and prejudice.
Upon motion of PRUNA's counsel, the Public Attorney's Office
(PAO), the Information was amended changing the name of the
accused from Manuel Pruna y Ramirez to Erman Pruna y
Ramirez, which was the name reflected in his birth
certificate. 3 However, when he testified in court, he stated
that his name was Manuel Pruna; and in the minutes of the
court proceedings, he signed the name Manuel Pruna.

On 27 November 1995, upon the Motion to Put the Accused

Under Psychiatric or Mental Examination 4 filed by PRUNA's
counsel on the ground that he could not secure from PRUNA a
coherent answer to even simple questions, the trial court
ordered that the accused be brought to the National Mental
Hospital in Mandaluyong City for psychiatric or mental
examination. 5 Accordingly, the trial was suspended, and
PRUNA was sent to the National Center for Mental Health
(NCMH), Mandaluyong City.
On 28 June 1996, the trial court received a telegram 6 from
the NCMH stating that PRUNA was in "fair condition." The
NCMH later submitted to the trial court a report 7 on the
psychiatric evaluation of PRUNA with a recommendation to put
him back to jail for the resumption of court proceedings. The
report also stated that PRUNA narrated that while he and his
friends were under the bridge sniffing rugby and drinking
alcohol, they saw a 3-year-old girl defecating in the river bank;
that they called her; and, upon the order of his friends he
placed her on his lap and attempted to caress her sensitive
parts. Said report was not, however, offered in evidence by the
prosecution or the defense.
The prosecution presented five witnesses, whose testimonies
can be summed up as follows:
Jacqueline Gonzales, the mother of LIZETTE, testified that on 3
January 1995, at 9:30 a.m., she was fetching water from the
artesian well located ten meters away from her house, while
LIZETTE was defecating at the back of the house of their
neighbor Gloria Tolentino. Jacqueline then carried her pail of
water and went back to her house. Since LIZETTE was not
home yet, Jacqueline headed toward the place where the
former was moving her bowel. She looked for LIZETTE but did
not find her. It was when Jacqueline was already returning to
her house that she saw LIZETTE from behind red-faced,
crying, and appeared to be very frightened. When asked where
she came from, LIZETTE answered that she was brought by a
certain "Boy" to the grassy area at the back of Gloria's house
where she was sexually molested (or "kinantot" in the Tagalog
dialect). LIZETTE then pulled her mother and led her to the
house of PRUNA, which was about eight meters away from
their house. PRUNA, the only one known in their community as
"Boy," was not there. Jacqueline forthwith requested her
mother-in-law to report the matter to the police, while
Jacqueline and LIZETTE went to the Bataan Provincial
Hospital. 8
Jacqueline further declared that at the time of the alleged
rape, LIZETTE was 3 years old, but at the time Jacqueline
testified on 17 October 1995, LIZETTE was 4 years old.
LIZETTE's last birthday was on 19 April 1995. 9
LIZETTE testified that she knew PRUNA whom he called "Boy."
She pointed to him inside the courtroom. According to her,
PRUNA laid her down in a grassy area and inserted his penis
into her vagina. When the presiding judge asked her whether
she knew that it is a sin to tell a lie, she answered in the
affirmative. 10
Dr. Emelita Quiroz, an obstetrician and gynecologist at the
Bataan Provincial Hospital, testified that on 3 January 1995,
she conducted a complete physical examination on LIZETTE
and took wet smear specimen from her vaginal wall through
scraping. The specimen was sent to the laboratory for analysis
by a medical technologist. Further, she requested a urinalysis
for LIZETTE. 11 The Medico-Legal Report 12 prepared by Dr.
Quiroz reveals the following findings:
Essentially normal PE-Findings
Infantile areola & nipples
Flat breasts (-) hematoma
(-) pubic hair
Labia minora and majora well coaptated
Hymenal ring intact (+) hyperemia (-) laceration
(Vaginal Opening)
LABORATORY RESULT:
WET SMEAR: KOH - Negative for T-Vaginalis
- NSS - Negative for fungi
SPERM ANALYSIS - POSITIVE for sperm cells
Gram staining-few, epithelial cells seen, no
other
microorganism
URINALYSIS: RBC-3-7-/hpf epithelial cells few.
WBC-0-2
Although not stated in the Medico-Legal Report of Dr. Quiroz,
the urinalysis report 13includes a positive finding for "sperm
cells." Dr. Quiroz explained that the presence of sperm cells in
the vaginal canal signified that sexual intercourse and
ejaculation had occurred on the person of the patient. There
was no laceration; but there was hyperemia, which means
reddening of the tissue around the vaginal opening. Among
the causes of hyperemia is the insertion of a hard object like
penis and finger. 14
Teresita Magtagnob, the medical technologist who conducted
the laboratory examinations and prepared the corresponding
reports, 15 testified that sperm cells were found in the wet
smear specimen and urine taken from LIZETTE. 16
SPO2 Romeo D. Bunsoy, a member of the Philippine National
Police assigned at the Pilar Municipal Station, testified that on
3 January 1995 the parent of the minor rape victim filed a
complaint against PRUNA. He referred the matter to the desk
officer to have it blottered. Upon his advise, the minor was
brought to the hospital for examination. When they returned
from the hospital, he took their statements. Later, he
conducted an ocular inspection and investigation at the
alleged place of the incident and caused the place to be
photographed, which showed that the grasses were flattened.
He inquired from the people in the neighborhood, and one of
them answered that he saw the minor being brought by
PRUNA to the place where the minor was found. When PRUNA
was brought to their station by four barangay tanods of
Panilao, Pilar, Bataan, SPO2 Bunsoy tried to converse with him,
but the former did not give any reply. 17
On the part of the defense, Carlito Bondoc and PRUNA took the
witness stand.
Carlito testified that on 3 January 1995, he fetched water at
the public artesian well together with Jacqueline. After having
drawn water from the well, Jacqueline called her daughter,
who was then defecating on the road near the river; and they
both went home. After a while, the parents of LIZETTE shouted
that their daughter was raped, and then they proceeded to the
house of PRUNA and accused him of having raped the child.
Carlito asserted that PRUNA could not have raped LIZETTE
because he (PRUNA) was in his house from the time that
LIZETTE was moving her bowel up to the time that her mother
went to the house of PRUNA. Carlito knew that PRUNA was at
home because the former was also in the latter's house to
have coffee. Carlito and the Sulit family thereafter brought
PRUNA to the barangay hall. Since the barangay captain was
not around, they brought PRUNA to the municipal building to
prove that he was innocent. 18
PRUNA denied having raped LIZETTE. He claimed that in the
morning of 3 January 1995, he was in his house preparing
coffee for Carlito. After Carlito left, several men arrived and
boxed him for reasons not known to him. Carlito and the
latter's friend then brought him to the barangay hall. There,
LIZETTE's father boxed him. He was thereafter brought to the
Pilar Municipal Jail. There, the mother of the child threw at him
the lid cover of a kettle. He was also asked by the police to
take off his clothes and lie flat; then he was mauled.
Thereafter, he was told to put his feet between the grills, and
he was made to masturbate. Worse, his testes were burned
with cigarette butts. Every night, he was asked to kneel on a
chair and was hit with a 2"x 2" piece of wood. 19
After trial, PRUNA was convicted by the trial court of the crime
of rape in its qualified form and sentenced to suffer the
supreme penalty of death and to indemnify the victim in the
sum of P50,000, plus costs. 20 Hence, this automatic review.
In his Appellant's Brief, 21 PRUNA attributed to the trial court
the following errors:
I
. . . IN RELYING ON THE TESTIMONY OF JACQUELINE
S. GONZALES, THE MOTHER OF THE CHILD, THAT THE
LATTER WAS THREE (3) YEARS OLD WHEN THE
ALLEGED RAPE OCCURRED WHEN THE BEST
EVIDENCE THEREFOR IS THE BIRTH CERTIFICATE OF
THE CHILD.
II
. . . IN RELYING ON THE HEARSAY TESTIMONY OF
JACQUELINE S. GONZALES AS TO THE ALLEGED RAPE
OF HER CHILD.
 III
. . . IN ADMITTING AND RELYING ON THE TESTIMONY
OF COMPLAINANT[] CHILD WHO WAS ONLY THREE (3)
YEARS OLD WHEN THE ALLEGED RAPE OCCURRED
EVEN AS SHE WAS ONLY FIVE (5) YEARS OLD WHEN
SHE TESTIFIED.
IV
. . . IN CONVICTING THE ACCUSED ON DUBIOUS
EVIDENCE.
The Office of the Solicitor General (hereafter OSG) seeks the
affirmation of the trial court's decision with the modification
that an additional award of P50,000 as moral damages be
granted in favor of the offended party.
As culled from the arguments of the parties, the issues to be
resolved in this case are as follows:
(1) Whether LIZETTE was a competent and credible witness
considering that she was allegedly only 3 years old when the
alleged rape occurred and 5 years old when she testified;
(2) Whether Jacqueline's testimony as to the declarations of
LIZETTE is hearsay;
(3) Whether the failure of the prosecution to present Gloria
Tolentino as a witness is fatal;
(4) Whether appellant's guilt has been proved beyond
reasonable doubt;
(5) Whether the qualifying circumstance of minority has been
duly proved as to justify the imposition of the death penalty.
We shall resolve these issues in seriatim.
I. LIZETTE's Competency and Credibility as a Witness
Appellant disputes the competency of LIZETTE to testify by
reason of her tender age. When LIZETTE was called to testify,
his counsel interposed a vigorous objection to the admission of
her testimony because of her tender age. The trial court noted
the objection and allowed her to testify; thus:
DIRECT EXAMINATION BY PROS. LUMABAS:
Q Do you know Manuel Pruna?
A Yes, sir.
Q How do you call Manuel Pruna?
A Boy, sir.
Q Where is he?
A There, sir. (Witness pointing to a person wearing
blue T-shirt, who when asked, gave his name as
Manuel Pruna)
PROS. LUMABAS:
Q What did Manuel Pruna or Boy do to you?
A "Inihiga niya ako" and inserted his penis to my
vagina, sir.
Q And in what place did he do this to you?
A In the grassy area, sir.

Q After he inserted his penis to your vagina, what

happened next?
ATTY. BALUYOT:
The witness for quite sometime could not answer
the question.
PROS. LUMABAS:
I think that will be all for the witness. 22
After which, the defense counsel manifested that he would not
cross-examine her and that he intended to file a motion for her
disqualification as a witness. 23 The court then proceeded to
ask her a few questions, thus:
 COURT:
Q Do you know what will happen to a child if she is
not telling the truth?
A "Sa lupa."
Q Do you know that it is a sin to tell a lie?
A Yes, sir.
Q The witness is excused considering the
manifestation of Atty. Baluyot that he will be
filing a written motion for the striking out of the
testimony of the witness considering her tender
age. 24
No such motion is extant on the records. At the next hearing,
the defense counsel cross-examined LIZETTE, as follows:
ATTY. BALUYOT:
Q On January 3, 1995, in the morning where were
you?
A I was in the grassy area, sir.
Q In that grassy area there were other children with
you playing?
A None, sir.
Q You were then removing [sic] your bowel, is it not?
A Yes, sir.
Q Then while removing your bowel you saw your
mother pass[ ] by, is it not?
A Yes, sir.
Q She was then carrying a pail to fetch some water,
is it not?
A Yes, sir.
 Q The water from where she will fetch is [sic] . . . a
few meter[s] away from you, is it not?
A Near, sir.
xxx xxx xxx
ATTY. BALUYOT:
Q Considering that the grassy place where you were
then discharging your bowel is beside a street?
A Yes, sir.
Q And you saw your mother bringing a pail of water
towards your house after her pumping from the
well, is it not?
A Yes, sir.
Q When she passed by she likewise saw you, is it
not?
A Yes, sir.
Q Then how far were you from your house when you
were discharging your bowel? Please
demonstrate the distance?
A Up to that door, sir.
Q From that position you were at the grass you could
see your house, is it not?
A Yes, sir.
Q Could you tell the Honorable Court how long did it
take you to discharge your bowel?
xxx xxx xxx
A For a short period of time, sir. (Sandali lang po.) 25
As a general rule, when a witness takes the witness stand, the
law, on ground of public policy, presumes that he is
competent. The court cannot reject the witness in the absence
of proof of his incompetency. The burden is, therefore, upon
the party objecting to the competency of a witness to establish
the ground of incompetency. 26
Section 21 of Rule 130 of the Rules on Evidence enumerates
the persons who are disqualified to be witnesses. Among those
disqualified are "[c]hildren whose mental maturity is such as to
render them incapable of perceiving the facts respecting which
they are examined and relating them truthfully."
No precise minimum age can be fixed at which children shall
be excluded from testifying. The intelligence, not the age, of a
young child is the test of the competency as a witness.27 It is
settled that a child, regardless of age, can be a competent
witness if he can perceive and, in perceiving, can make known
his perception to others and that he is capable of relating
truthfully the facts for which he is examined. 28
In determining the competency of a child witness, the court
must consider his capacity (a) at the time the fact to be
testified to occurred such that he could receive correct
impressions thereof; (b) to comprehend the obligation of an
oath; and (c) to relate those facts truly to the court at the time
he is offered as a witness. 29 The examination should show
that the child has some understanding of the punishment
which may result from false swearing. The requisite
appreciation of consequences is disclosed where the child
states that he knows that it is wrong to tell a lie, and that he
would be punished if he does so, or that he uses language
which is equivalent to saying that he would be sent to hell for
false swearing. 30 A child can be disqualified only if it can be
shown that his mental maturity renders him incapable of
perceiving facts respecting which he is being examined and of
relating them truthfully. 31
The question of competency of a child-witness rests primarily
in the sound discretion of the trial court. This is so because the
trial judge sees the proposed witness and observes his manner
of testifying, his apparent possession or lack of intelligence, as
well as his understanding of the obligation of an
oath. 32 Since many of the witness' manners cannot be
photographed into the record, the finding of the trial judge will
not be disturbed or reversed unless from what is preserved it
is clear that such finding was erroneous. 33
In this case, appellant questions the competency of LIZETTE as
a witness solely on the ground of her age. He failed to
discharge the burden of showing her mental immaturity. From
the above-quoted testimony, it can be gleaned that LIZETTE
had the capacity of observation, recollection, and
communication 34 and that she could discern the
consequence of telling a lie. We, therefore, sustain the trial
court in admitting her testimony and according it great weight.
We are not persuaded by appellant's assertion that LIZETTE
should not be allowed to testify two years after the alleged
rape "when the interplay of frail memory combines with the
imagination of earlier years." It must be noted that it is a most
natural reaction for victims of criminal violence to have a
lasting impression of the manner in which the crime was
committed and the identity of the person responsible
therefor. 35
In a string of cases, we have said that the testimony of a rape
victim who is of young or tender age is credible and deserves
full credit, 36 especially where no motive is attributed to the
victim that would make her testify falsely against the
accused. 37 Indeed, a girl of such age as LIZETTE would not
concoct a story of defloration; allow the examination of her
private parts; and undergo the expense, trouble,
inconvenience, and the trauma of a public trial unless she was
in fact raped. 38
II. The Alleged Hearsay Testimony of Jacqueline
Gonzales
Contrary to appellant's contention, Jacqueline's testimony that
LIZETTE told her that appellant laid her in the grassy area and
inserted his penis into her vagina is not covered by the
hearsay evidence rule, which finds application when the
declarant does not testify. This rule, as enunciated
under Section 36, Rule 130 of the Rules on Evidence, provides
that a witness can testify only to those facts which he knows
of his personal knowledge except as otherwise provided in the
Rules of Court.
The term "hearsay" as used in the law on evidence, signifies
evidence which is not founded upon the personal knowledge of
the witness from whom it is elicited and which consequently
does not depend wholly for its credibility and weight upon the
confidence which the court may have in him; its value, if any,
is measured by the credit to be given to some third person not
sworn as a witness to that fact, and consequently not subject
to cross-examination. 39 If one therefore testifies to facts
which he learned from a third person not sworn as a witness to
those facts, his testimony is inadmissible as hearsay
evidence. 40
The reason for the exclusion of hearsay evidence is that the
party against whom the hearsay testimony its presented is
deprived of the right or opportunity to cross-examine the
person to whom the statements are attributed. 41 Moreover,
the court is without opportunity to test the credibility of
hearsay statements by observing the demeanor of the person
who made them. 42
In the instant case, the declarant (LIZETTE) herself was sworn
as a witness to the fact testified to by Jacqueline. The
appellant even cross-examined her (LIZETTE). Moreover, the
trial court had the opportunity to observe her manner of
testifying. Hence, Jacqueline's testimony on the incident
related to her by her daughter cannot be disregarded as
hearsay evidence.
Even assuming that the aforementioned testimony of
Jacqueline is hearsay, its non-admission would not save the
day for the appellant. Such testimony is not indispensable, as
it merely serves to corroborate LIZETTE's testimony that
PRUNA laid her down in the grass and inserted his private
organ into hers. As discussed earlier, LIZETTE's testimony,
which was found to be credible by the trial court, is sufficient
basis for conviction.
At any rate, Jacqueline's testimony is proof of the victim's
conduct immediately after the rape. It shows that LIZETTE
immediately revealed to her mother the rape incident and the
identity of her defiler. As will be discussed later, such conduct
is one of the earmarks of the truth of the charge of rape.
III. Non-Presentation of Gloria Tolentino as a Witness
Appellant harps on the prosecution's failure to put on the
witness stand Gloria Tolentino, who was listed as a witness and
executed an affidavit on 4 January 1995 that she saw the
appellant carrying and bringing LIZETTE to a grassy area at
the back of her house.
It is undisputed that at the time the case was called for trial,
Gloria had already moved out of her residence in Panilao, Pilar,
Bataan, and could not be found anymore. In any event, as
opined by the OSG, her intended testimony could be
dispensed with, as it would only be corroborative of LIZETTE's
testimony that Pruna brought her to a grassy area.
IV. Sufficiency of the Prosecution's Evidence Against
Appellant
When LIZETTE was put in the witness stand, she unhesitatingly
identified PRUNA, their neighbor, as the one who defiled her. A
rape victim can easily identify her assailant especially if he is
known to her because during the rape, she is physically close
to her assailant that enables her to have a good look at the
latter's physical features. 43
LIZETTE testified that on 3 January 1995 PRUNA, whom she
called Boy, laid her in a grassy area and inserted his penis into
her genitalia. When a girl or a woman says that she has been
raped she says in effect all that is necessary to show that rape
was truly committed.44 She is not expected to remember all
the ugly details of the outrage committed against her. 45 And
when her testimony passes the test of credibility, the accused
can be convicted on the basis thereof, for in most cases it is
the only evidence that can be offered to establish his guilt. 46

Likewise, LIZETTE's mother testified that right after the

incident LIZETTE disclosed what happened to her and readily
identified PRUNA as the culprit. She even led her mother to the
house of PRUNA. 47 Thereafter, the two went to the police
authorities to report the incident, and then to the hospital for
LIZETTE's medical examination.
By and large, the medical evidence lends credence to
LIZETTE's testimony that PRUNA inserted his penis into her
vagina. The Medico-Legal Report shows that there was
hyperemia or reddening of the vaginal opening of LIZETTE. As
opined by Dr. Quiroz, who was presented as an expert witness,
hyperemia can be caused by the insertion of a hard object like
penis and finger. 48 The presence of sperm cells in the vaginal
canal and urine of LIZETTE is also a mute testimony of the
sexual contact that further strengthens LIZETTE's claim of
rape.
This Court is not oblivious of the finding that no laceration was
found in LIZETTE's organ despite the fact that she was
examined immediately after she was raped. We have already
ruled, however, that the absence of fresh lacerations does not
preclude the finding of rape, 49 especially when the victim is
of tender age. 50 Well-settled is the rule that rape is
consummated by the slightest penile penetration of the labia
or pudendum of the female. 51 The presence of hyperemia in
LIZETTE's vaginal opening and the existence of sperm cells in
her vaginal canal and urine are clear indications that PRUNA's
organ indeed touched the labia or pudendum of LIZETTE.
In a nutshell, the following overwhelmingly establish the truth
of the charge of rape: (a) the spontaneity of the identification
by LIZETTE of PRUNA as the rapist; (b) her immediate
revelation to her mother of the dastard act committed against
her; (c) her act of leading her mother to appellant's house
right after the incident; (d) the prompt filing of the complaint
before the authorities; (e) LIZETTE's submission to medical
examination; (f) the hyperemia in her private part; and (g) the
presence of sperm cells in her vaginal canal and urine.
The trial court correctly disregarded the defense of alibi raised
by the accused. We have consistently held that for alibi to
prosper, it must be proved that during the commission of the
crime, the accused was in another place and that it was
physically impossible for him to be at the crime scene. Just like
denial, alibi is an inherently weak defense; and unless
supported by clear and convincing evidence, the same cannot
prevail over the positive declaration of the victim. 52 We have
also held that when alibi is established only by the accused,
his relatives, or close friends, the same should be treated with
strictest scrutiny. 53
Carlito, who was admittedly a close friend of appellant's
parents, corroborated PRUNA's testimony that he (PRUNA) was
in his house during the time that LIZETTE was raped. It is,
however, an established fact that the place where the rape
occurred was just a few meters away from the house of
PRUNA. Thus, there was no physical impossibility for PRUNA to
be in the grassy area to consummate the crime of rape.
The defense, through Carlito, attempted to impute motive to
Jacqueline in filing against PRUNA the charge of rape.
According to him, LIZETTE's grandparents, the Sulits, wanted
to buy the place of the PRUNA family, but the latter
refused. 54 Aside from the fact that such testimony was not
corroborated, said motive, if at all, is too flimsy to be even
considered. No mother in her right mind would use her
offspring as an engine of malice. She would not subject her
child to the humiliation, disgrace, and even the stigma
attendant to a prosecution for rape unless she is motivated by
the desire to bring to justice the person responsible for her
child's defilement. 55
V. Sufficiency of Evidence of LIZETTE's Minority and
Propriety of the Imposition of the Death Penalty
The commission of the crime of rape by PRUNA having been
duly established by the prosecution, we now come to the
question of the penalty to be meted upon him.
Article 335, seventh paragraph, no. 4, of the Revised Penal
Code, as amended by Republic Act No. 7659, provides that the
death penalty shall be imposed if the crime of rape is
committed against a "child below seven (7) years old." We
have held that in such a case the minority of the victim must
be proved with equal certainty and clearness as the crime
itself. The failure to sufficiently establish the victim's age is
fatal and consequently bars conviction for rape in its qualified
form. 56
A person's age is best proved by the birth certificate. But is the
presentation of the victim's birth certificate a sine qua
non requirement to prove her age for the appreciation of
minority either as an element of the crime or as a qualifying
circumstance? Recent jurisprudence has conflicting
pronouncements.
In the following cases, no birth certificate was presented and
this Court ruled that the age of the victim was not duly proved
by the prosecution:
1. In People v. Vargas, 57 the testimonies of the victim and
her aunt that the former was 10 years old at the time of the
rape were not considered proof of her age for being hearsay.
This Court also observed that the victim could easily be
mistaken for a child below 12 years of age, and hence it was
not correct to judge the victim's age by her appearance. We
held: "The difference of two or three years in age may not
always be readily apparent by mere physical manifestations or
appearance."
2. In People v. Javier, 58 the victim was alleged to be 16 years
old, and the accused did not contest her age. Ratiocinating
that in this age of modernism, there is hardly any difference
between a 16-year-old girl and an 18-year-old one insofar as
physical features and attributes are concerned, this Court held
that an independent proof of the actual age of a rape victim is
vital and essential so as to remove an iota of doubt that the
victim is indeed under 18 years of age as to fall under the
qualifying circumstances enumerated inR.A. No. 7659.
3. In People v. Brigildo, 59 aside from the failure of the
prosecution to present the offended party's birth certificate or
other equally acceptable official document concerning her age,
the testimonies on record were not clear as to her exact age.
The victim declared that she was 11 years old when she
testified in court a year after the incident, while her mother
claimed that she was around 15 years old at the time of the
commission of the crime. The informations even alleged a
different age. Hence, this Court refused to appreciate the
qualifying circumstance of minority because of the uncertainty
regarding her age.
4. In People v. Tipay, 60 the offended party was alleged in the
information to be under 16 years of age. No "independent"
evidence was presented to prove it. This Court recognized that
the minority of a victim who may be below the age of 10 is
quite manifest and may be taken judicial notice of by the
court. But when the victim is between the crucial years of 15
and 17 where minority may seem to be dubitable due to one's
physical appearance, the prosecution should prove the fact of
minority with certainty. The lack of objection on the part of the
accused concerning the victim's age does not excuse the
prosecution from discharging its burden.
5. In People v. Cula, 61 the victim was alleged in the complaint
to be 16 years old when the rape was committed, but no
evidence at all was presented to prove her age. We held that
the failure of the accused to deny such allegation cannot make
up for the failure of the prosecution to prove with certainty the
victim's minority. Because of the lacuna in the prosecution's
evidence, coupled with the trial court's failure to make a
categorical finding of minority of the victim, we declined to
consider the qualifying circumstance of minority.
6. In People v. Veloso, 62 the victim was alleged to be 9 years
of age when she was raped. Citing People v. Vargas, 63 this
Court refused to consider the testimonies of the victim and her
father as sufficient proof of her age.
7. In People v. Pecayo, 64 the victim simply stated during the
beginning of her direct examination that she was 14 years old
and that she was born on 13 January 1983. We held that the
victim's casual testimony as to her age is not enough, and that
the lack of denial on the part of the accused does not excuse
the prosecution from proving her age through competent
evidence such as a duly certified certificate of live birth,
baptismal certificate, or some other authentic document
showing her age.
8. In People v. Tundag, 65 the victim testified that she was 13
years of age when she was raped, but she did not know
exactly when she was born. Unable to secure a copy of her
birth certificate, the prosecution moved that judicial notice be
taken of the fact that she was below 18 years old at the time
of the rape. Despite the admission by the defense of such fact,
this Court held that the age of the victim is not a matter of
judicial notice, whether mandatory or discretionary. Under
Section 3, Rule 129 of the Rules on Evidence, a hearing is
required before such fact can be taken judicial notice of by
courts.
9. In People v. Geraban, 66 the victim's testimony was
categorical in declaring that she was 15, but her mother's
testimony regarding her age was not clear. We thus declared
that the prosecution failed to discharge the burden of proving
minority.
10. In People v. Liban 67 and People v. Llandelar, 68 the only
evidence adduced to prove the minority of the victims was the
victims' bare testimony that they were 10 and 16 years old,
respectively. This Court held that while the declaration of a
victim as to her age, being an exception to the hearsay
proscription, would be admissible under the rule on pedigree,
the question on the relative weight that may be accorded to it
is another matter. The prosecution should present the victim's
birth certificate or, in lieu thereof, any other documentary
evidence, like a baptismal certificate, school records, and
documents of similar nature, or credible testimonial evidence
that can help establish the age of the victim. Neither the
obvious minority of the victim nor the absence any contrary
assertion from the defense can exonerate the prosecution
from its burden. Judicial notice of the issue of age without the
requisite hearing under Section 3 of Rule 129 of the Rules on
Evidence would not be sufficient compliance with the law.

11. In People v. Alvarado, 69 the victim testified that she was

14 years old at the time of the rape, and this was confirmed by
the accused, who was victim's father. The victim's mother,
however, testified as to her date of birth which showed that
she was 13 years of age at the time of the commission of the
crime. For this doubt as to the victim's age, the accused was
held guilty of simple rape only and meted the penalty
of reclusion perpetua, and not death penalty.
On the other hand, in the following cases, we ruled that the
age of the rape victim was sufficiently established despite the
failure of the prosecution to present the birth certificate of the
offended party to prove her age:
1. In People v. Rafales, 70 the testimony of the victim and her
mother that the former was only 10 years old when she was
raped, which was not denied by the accused, was deemed
sufficient to prove her age for the purpose of determining
whether the accused could be held guilty of statutory rape,
which is carnal knowledge of a woman below 12 years of age.
2. In People v. De la Cruz, 71 the testimony of the mother
alone that her two daughters were both 14 years old at the
time of the rape incidents was deemed sufficient because
there was no reason to doubt the testimony of the mother,
who had personal knowledge of the ages of her children.
Moreover, said testimony was never challenged by the
accused and stood unrebutted by any other evidence.
3. In People v. Bali-balita, 72 the victim's testimony as to her
age, which was corroborated by her half-sister, was deemed
sufficient. We noted that the victim testified in court four
months after the rape, and hence it was not difficult for the
trial court to take judicial notice that she was under 18 years
of age.
4. In People v. Velasco, 73 the minority of the victim was
deemed established by (a) the complainant herself, who was
held to be competent to testify on her age, as it constituted
family tradition; (b) the open admission of the accused that
the victim was a 12-year-old minor; and (c) the categorical
finding of the trial court that she was "a minor of a little over
twelve years."
5. In People v. Remudo, 74 the trial court appreciated the
qualifying circumstance of minority on the strength of (a) the
offended party's testimony as to the date of her birth, which
showed that she was 13 years old at the time of the rape, and
(b) the admission of said date of birth by the accused who was
the victim's brother.
6. In People v. LLanita 75 the only evidence presented by the
prosecution to establish that the victim was below 7 years old
at the time of the alleged rape was the victim's own testimony.
Although hearsay because she could not have personal
knowledge of the date of her birth but could only acquire
knowledge thereof from her parents or relatives, said
testimony was held admissible for being an assertion of family
tradition regarding pedigree. Her testimony and the accused's
admission that she was 5 years old during the commission of
the crime were held sufficient to establish her age.
7. In People v. Agustin, 76 the victim's testimony that she was
14 years old at the time of the rape incidents, coupled with the
express admission of her age by the accused who was her
father, sufficiently proved her minority.
8. In People v. Esuela, 77 the testimony of the victim's mother
that the victim was 13 years of age at the time of the rape was
held sufficient to establish minority for the reason that as a
mother she was in the best position to know when she
delivered her child. Also considered were the victim's own
testimony regarding her age, as well as the observation of the
trial court that she could not have been more than 18 years
old when she testified.
In order to remove any confusion that may be engendered by
the foregoing cases, we hereby set the following guidelines in
appreciating age, either as an element of the crime or as a
qualifying circumstance.
1. The best evidence to prove the age of the offended party is
an original or certified true copy of the certificate of live birth
of such party.
2. In the absence of a certificate of live birth, similar authentic
documents such as baptismal certificate and school records
which show the date of birth of the victim would suffice to
prove age.
3. If the certificate of live birth or authentic document is shown
to have been lost or destroyed or otherwise unavailable, the
testimony, if clear and credible, of the victim's mother or a
member of the family either by affinity or consanguinity who is
qualified to testify on matters respecting pedigree such as the
exact age or date of birth of the offended party pursuant
to Section 40, Rule 130 of the Rules on Evidence shall be
sufficient under the following circumstances:
a. If the victim is alleged to be below 3 years of age
and what is sought to be proved is that she is less
than 7 years old;
b. If the victim is alleged to be below 7 years of age
and what is sought to be proved is that she is less
than 12 years old;
c. If the victim is alleged to be below 12 years of age
and what is sought to be proved is that she is less
than 18 years old.
4. In the absence of a certificate of live birth, authentic
document, or the testimony of the victim's mother or relatives
concerning the victim's age, the complainant's testimony will
suffice provided that it is expressly and clearly admitted by the
accused. 78
5. It is the prosecution that has the burden of proving the age
of the offended party. The failure of the accused to object to
the testimonial evidence regarding age shall not be taken
against him.
6. The trial court should always make a categorical finding as
to the age of the victim.
In the present case, no birth certificate or any similar authentic
document, such as a baptismal certificate of LIZETTE, was
presented to prove her age. In imposing the death penalty, the
trial court ratiocinated in this wise:
In the instant case, the victim, Lizette Arabelle
Gonzales, was a 3-year-old minor girl as alleged in
the information and the defense did not contest her
age and as a matter of fact was questioning her
qualification to testify because of her tender age
when she testified two (2) years later in Court. The
victim's Medico-Legal Certificate date[d] January 3,
1995 . . . established the fact that at the time of the
commission of the rape on January 3, 1995, the child
was only 3 years old. 79
It thus appears that the trial court's finding that LIZETTE was 3
years old when she was raped was based on the Medico-Legal
Report prepared by Dr. Quiroz, as well as on the fact that the
defense did not contest her age and even questioned her
qualification to testify because of her tender age.
However, the Medico-Legal Report relied upon by the trial
court does not in any way prove the age of LIZETTE, for there
is nothing therein which even mentions her age. Only
testimonial evidence was presented to establish LIZETTE's
age. Her mother, Jacqueline, testified on 17 October 1995 as
follows:
Q. Now, on January 3, 1995 at about 9:30 in the
morning, do you still recall where you were?
A. Yes, sir.
Q. Where were you at that particular date and time?
A. I was fetching water from an artesian well beside
the house of my neighbor, sir.
xxx xxx xxx
Q. Where was this daughter of yours then when you
were fetching water?
 A. My daughter was discharging her bowel who was
then at the back of the house of our neighbor,
sir.
Q. How old is your daughter Lizette Arabelle
Gonzales?
A. Three years old, sir.
Q. At the time that she was discharging her bowel,
how old [was] she?
A. Three years old, sir. She is four years old now.
Q. When was her last birthday?
A. April 19, 1995, sir. 80
Likewise, LIZETTE testified on 20 November 1996, or almost
two years after the incident, that she was 5 years
old. 81 However, when the defense counsel asked her how old
she was on 3 January 1995, or at the time of the rape, she
replied that she was 5 years old. Upon further question as to
the date she was born, she could not answer. 82
For PRUNA to be convicted of rape in its qualified form and
meted the supreme penalty of death, it must be established
with certainty that LIZETTE was below 7 years old at the time
of the commission of the crime. It must be stressed that the
severity of the death penalty, especially its irreversible and
final nature once carried out, makes the decision-making
process in capital offenses aptly subject to the most exacting
rules of procedure and evidence. 83
In view of the uncertainty of LIZETTE's exact age,
corroborative evidence such as her birth certificate, baptismal
certificate or any other authentic document should be
introduced in evidence 84 in order that the qualifying
circumstance of "below seven (7) years old" is appreciated
against the appellant. The lack of objection on the part of the
defense as to her age did not excuse the prosecution from
discharging its burden. That the defense invoked LIZETTE's
tender age for purposes of questioning her competency to
testify is not necessarily an admission that she was below 7
years of age when PRUNA raped her on 3 January 1995. Such
being the case, PRUNA cannot be convicted of qualified rape,
and hence the death penalty cannot be imposed on him.
However, conformably with no. 3(b) of the foregoing
guidelines, the testimony of LIZETTE's mother that she was 3
years old at the time of the commission of the crime is
sufficient for purposes of holding PRUNA liable for statutory
rape, or rape of a girl below 12 years of age. Under the second
paragraph of Article 335, as amended by R.A. No. 7659, in
relation to no. 3 of the first paragraph thereof, having carnal
knowledge of a woman under 12 years of age is punishable
by reclusion perpetua. Thus, the penalty to be imposed on
PRUNA should be reclusion perpetua, and not death penalty.
As regards the civil liability of PRUNA, the indemnity in the
amount of P50,000 awarded by the trial court is not sufficient.
In accordance with recent jurisprudence, LIZETTE should also
be awarded moral damages in the amount of P50,000 without
need of pleading or proof because the mental, physical and
psychological trauma suffered by her is too obvious. 85

WHEREFORE, the decision of the Regional Trial Court, Branch

1, Balanga, Bataan, in Criminal Case No. 6044 is hereby
AFFIRMED with the modification that accused Manuel Pruna y
Ramirez or Erman Pruna y Ramirez is held guilty beyond
reasonable doubt of statutory rape, and not qualified rape, and
is sentenced to suffer reclusion perpetua and to pay the victim
Lizette Arabelle Gonzales the sum of P50,000 as moral
damages in addition to the indemnity of P50,000. IESDCH
Costs de oficio.
SO ORDERED.
||| (People v. Pruna y Ramirez, G.R. No. 138471, [October 10,
2002], 439 PHIL 440-474)

THIRD DIVISION

[G.R. No. 208007. April 2, 2014.]

PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. RODRIGO GUTIEREZ Y ROBLES
ALIAS "ROD AND JOHN LENNON", accused-
appellant.

DECISION

LEONEN, J p:
For a measly five- or ten-peso tip that a 10-year-old child
would need for lunch money, a known acquaintance of their
family would destroy a child's dignity by having illicit carnal
knowledge of her. This case involves an act that is so dastardly
that it is punished by Article 266-A of the Revised Penal Code
as statutory rape which carries a sentence ofreclusion
perpetua.
We are asked to review the Court of Appeals decision 1 in CA-
G.R. CR-HC No. 02955. This decision affirmed the conviction of
the accused-appellant for statutory rape under Article 266-A of
the Revised Penal Code and imposed the penalty of reclusion
perpetua.
The facts of the case are as follows:
On November 30, 2005, an information 2 was filed against the
accused-appellant before the Regional Trial Court of Baguio
City, Branch 59. The information reads:
 That on or about November 29, 2005, in the City of
Baguio, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously have
carnal knowledge of the offended party, (AAA), who
is under twelve (12) years old.
Contrary to law. cSIHCA
Upon arraignment, Rodrigo Gutierez pleaded "not guilty." Trial
on the merits ensued.
The prosecution presented the victim, AAA, who was then 10
years old and a Grade 2 student at Camp 7 Elementary School
in Baguio City. She testified that on November 29, 2005, she
went home from school at around 12 noon to have lunch. 3 On
the way home, she met Rodrigo at his house. He brought her
to his room and laid her down on the bed. He then raised her
skirt and removed her panties. He pulled down his pants and
then inserted his penis into her vagina. 4
According to AAA, Rodrigo stayed on top of her for a long time,
and when he withdrew his penis, white liquid came out. He
then gave her five pesos (P5.00) before she went back to
school. 5
AAA went back to school at about 2:10 p.m. Her adviser,
Agustina Chapap, asked her where she came from because
she was tardy. AAA initially did not answer. When asked again
why she was tardy, AAA admitted she came from "Uncle Rod."
She also admitted that she went there to ask for money.
Chapap then brought AAA to Rona Ambaken, AAA's previous
teacher. Together, they brought AAA to the principal's office.
AAA was brought to the comfort room where Ambaken
inspected her panties. The principal was able to confirm that
AAA was touched since AAA's private organ was swelling. Her
underwear was also wet. 6
Another teacher, Jason Dalisdis, then brought AAA to Baguio
General Hospital where her underwear was again inspected.
Dr. Anvic Pascua also examined her. On the way to the
hospital, Dalisdis passed by the barangay hall and the police
station to report the incident. 7
AAA also disclosed during trial that the accused-appellant had
done the same thing to her about 10 times on separate
occasions. After each act, he would give her ten (P10.00) or
five (P5.00) pesos. 8
The prosecution also presented Dr. Asuncion Ogues as an
expert witness. Dr. Ogues was the superior of Dr. Pascua who
examined AAA. Dr. Ogues testified based on the medical
certificate issued by the examining physician that there was
blunt force penetrating trauma that could have been caused
by sexual abuse. She also stated that there was another
medico-legal certificate issued by Dr. Carag, surgical resident
of the Department of Surgery of Baguio General Hospital,
showing findings of some hematoma in AAA's legs.9
In his defense, Rodrigo denied that AAA went to his house at
12 noon on November 29, 2005 and claimed he was already at
work at 1:30 p.m. He has known AAA for a long time since his
family rented the house of AAA's grandfather from 2001 to
2004. 10 When the police came and asked him if he knew
AAA, he answered in the affirmative. He was then brought to
Baguio General Hospital where he was told that AAA identified
him as the one who raped her. 11
Rodrigo admitted that he had a relationship with AAA's sister,
and they even lived together as common-law spouses. 12 He
also admitted that a similar complaint was filed against him by
AAA's mother when AAA was eight years old, but they settled
the case at the barangay level. 13
On July 4, 2007, the trial court rendered a judgment 14 finding
Rodrigo guilty beyond reasonable doubt of statutory rape and
imposing on him the penalty of reclusion perpetua. He was
additionally required to indemnify the offended party
P50,000.00 moral damages and P25,000.00 exemplary
damages with costs of suit.
Rodrigo appealed 15 to the Court of Appeals claiming that
AAA's testimony fell short of the requirement of the law on the
quantum of evidence required. He argued that she did not cry
for help when her family's house was just nearby, which was
cause for reasonable doubt that the trial court failed to
appreciate. aITDAE
On February 28, 2013, the Court of Appeals rendered a
decision 16 affirming the conviction.
On March 11, 2013, Rodrigo filed a notice of appeal 17 with
the appellate court, which was given due course in a
resolution 18 dated March 15, 2013.
Hence, this appeal was instituted.
In the resolution 19 of September 9, 2013, this court required
the parties to submit their respective supplemental briefs, if
they so desired. Both parties, however, manifested that they
were dispensing with the filing of a supplemental brief as their
arguments were already substantially and exhaustively
discussed in their respective briefs filed before the appellate
court.
The only issue to be resolved by this court is whether the
prosecution was able to prove beyond reasonable doubt that
the accused-appellant was guilty of statutory rape punishable
under Article 266-A of the Revised Penal Code.
Rape is defined in Article 266-A of the Revised Penal Code,
which states:
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.
xxx xxx xxx
Statutory rape is committed when (1) the offended party is
under 12 years of age and (2) the accused has carnal
knowledge of her, regardless of whether there was force,
threat or intimidation; whether the victim was deprived of
reason or consciousness; or whether it was done through fraud
or grave abuse of authority. It is enough that the age of the
victim is proven and that there was sexual intercourse.
People v. Teodoro 20 explained the elements of statutory rape
committed under Article 266-A, paragraph (1) (d):
Rape under paragraph 3 of this article is termed
statutory rape as it departs from the usual modes of
committing rape. What the law punishes in statutory
rape is carnal knowledge of a woman below twelve
(12) years old. Thus, force, intimidation and physical
evidence of injury are not relevant
considerations; the only subject of inquiry is the age
of the woman and whether carnal knowledge took
place. The law presumes that the victim does not
and cannot have a will of her own on account of her
tender years; the child's consent is immaterial
because of her presumed incapacity to discern good
from evil. (Emphasis supplied)
The defense did not dispute the fact that AAA was 10 years old
at the time of the incident. Her birth certificate was presented
before the trial court. 21 What is critical in this case, therefore,
is whether there is a showing that Rodrigo had carnal
knowledge of AAA. HaEcAC
In the testimony of AAA, she narrated that on November 29,
2005, she met Rodrigo in his house, thus:
Q: Now, when you met the accused, what did he do?
A: He brought me in the room, Ma'am.
Q: The room is located inside his house?
A: Yes, Ma'am.
Q: And, was that the first time you entered the room?
A: (The witness nods.)
Q: After entering the room, what did Uncle Rod tell
you?
A: He laid me down, Ma'am.
COURT:
Q: Where?
A: On the bed, Ma'am.
PROS. BERNABE:
Q: Who were the persons inside the room aside from
you and Uncle Rod?
A: (Witness shook her head meaning no persons
around.)
Q: After lying down on the bed, what did he do next?
A: He raised up my skirt.
Q: After raising up your skirt, what else did he do?
A: He removed my panty, Ma'am.
Q: Was he able to remove it from your legs your
panty? [sic]
A: No, Ma'am.
Q: Until where was he able to remove?
A: (Witness is pointing down to the ankle.)
Q: After pulling down your panty until your ankle,
what happened?
A: He pulled down his short pants, Ma'am.
Q: After pulling down his short pants, what did Uncle
Rod do?
A: He brought out his penis.
Q: After bringing out his penis, what did he do next?
A: He inserted his penis to my vagina, Ma'am.
Q: Will you please show us where is your vagina?
A: (The witness stood and pointed to her private
part.)
Q: You also mentioned AAA that Uncle Rod inserted
his penis to your vagina, could you point to the
"ari" of Uncle Rod?
A: (The witness pointed to a portion where the
private part of the elder brother was standing.)
Q: Was it painful when Uncle Rod inserted his penis
inside your vagina?
A: Yes, Ma'am. DSEIcT
Q: Did you cry when Uncle Rod inserted his penis
inside your vagina?
A: Yes, Ma'am.
Q: Did he stay long on top of you? At around how
many minutes?
 A: Very long, Ma'am.
Q: Did he withdraw his penis from your vagina?
A: Yes, Ma'am.
Q: And after he withdrew his penis inside your
vagina, what happened?
A: There is some white liquid that came out of his
penis, Ma'am. 22
As shown by her testimony, AAA was able to narrate in a clear
and categorical manner the ordeal that was done to her. As a
child-victim who has taken significant risks in coming to court,
her testimony deserves full weight and credence. People v.
Veloso 23stated that:
In a litany of cases, this Court has ruled that the
testimonies of child-victims of rape are to be given
full weight and credence. Reason and experience
dictate that a girl of tender years, who barely
understands sex and sexuality, is unlikely to impute
to any man a crime so serious as rape, if what she
claims is not true. Her candid narration of how she
was raped bears the earmarks of credibility,
especially if no ill will as in this case motivates
her to testify falsely against the accused. It is well-
settled that when a woman, more so when she is a
minor, says she has been raped, she says in effect all
that is required to prove the ravishment. The
accused may thus be convicted solely on her
testimony provided it is credible, natural,
convincing and consistent with human nature and
the normal course of things. 24
AAA's ordeal was supported by the testimonies of her teachers
whose concern for her led to the discovery of the crime. The
medical certificate presented in court, together with the
testimonies of the physicians, is consistent with the finding
that she was sexually abused.
Rodrigo asserted that AAA's failure to cry out for help shows
reasonable doubt. He noted that her house was just near his
house where the incident happened.
This argument is so feeble that it could only have been put up
out of desperation.
Rodrigo was referred to by the child-victim as "Uncle Rod." He
admitted that AAA's family had known him for a long time.
Rodrigo had the trust and respect that any elder in the family
of AAA had. Instead of providing the moral guidance that his
status allowed him, he took advantage of AAA's youthful
innocence to satiate his illicit carnal desires. To cover this up
and seemingly justify his actions, he gave his child-victim the
measly sum of five pesos. Rodrigo knew that what he did was
wrong; AAA would have probably doubted whether such act
was normal among adults.
With his moral ascendancy, it would not be unreasonable to
assume that even the child-victim's desire for help would be
muffled by her fear of her "Uncle Rod." To a young 10-year-old,
the ordinary world can be daunting. To be so young and
silently aware that one is the victim of such callous
depravation by Rodrigo, who she could have expected to take
care of her, can create the kind of lasting fear that diminishes
the development of her own person and her own convictions.
In any case, whether she cried for help is immaterial in a
charge of statutory rape since "[t]he law presumes that such a
victim, on account of her tender age, does not and cannot
have a will of her own." 25
Beyond reasonable doubt, Rodrigo Gutierez raped AAA, a
minor who was only 10 years of age, on November 29,
2005. AICTcE
Article 266-B of the Revised Penal Code requires that the
penalty of reclusion perpetuashall be imposed in cases of rape
stated in the first paragraph of Article 266-A where there are
no aggravating or qualifying circumstances present. The lower
courts correctly imposed this penalty.
Their award of damages, however, must be modified in light of
recent jurisprudence.
It is settled that the award of civil indemnity is mandatory
upon a finding that rape was committed, along with the award
of moral and exemplary damages. 26 In People v.
Degay,27 the accused-appellant was found guilty of raping his
nine-year-old neighbor. This court did not hesitate to increase
the award of civil indemnity and moral damages from
P50,000.00 to P75,000.00. In People v. Gambao, 28 we have
also increased the award of civil indemnity, moral damages,
and exemplary damages to P100,000.00 each.
Due to the utter heinousness of the crime involved in this
case, we, therefore, exercise our judicial prerogative and
increase the damages to P100,000.00 as civil indemnity,
P100,000.00 as moral damages, and P100,000.00 as
exemplary damages.
There are not enough words to condemn the depravity that
one adult can do to a child-victim. The many years that
Rodrigo Gutierez will, by law, serve in prison will, of course, not
make up for the wrong and the injury that he has so selfishly
and callously caused and with utter disregard for what truly
makes us human: that we care, nurture, and protect our
children because we hope that they can make their world
better than ours. All this was lost on Rodrigo Gutierez. The five
pesos that he gave on every occasion that he defiled his child-
victim simply underscores the ignominy of his act.
WHEREFORE, the decision of the Court of Appeals finding the
accused-appellant Rodrigo Gutierez y Robles guilty beyond
reasonable doubt of statutory rape
is AFFIRMED withMODIFICATION. The accused-appellant is
sentenced to reclusion perpetua and is ordered to pay AAA the
amount of P100,000.00 as civil indemnity, P100,000.00 as
moral damages, and P100,000.00 as exemplary damages, with
an interest of 6% per annum from the finality of this decision
until its full satisfaction. EDCIcH
SO ORDERED.
||| (People v. Gutierez y Robles, G.R. No. 208007, [April 2,
2014])

SECOND DIVISION

[G.R. No. 181633. September 12, 2008.]

PEOPLE OF THE PHILIPPINES, plaintiff-

appellee, vs. ROGER UGOS,accused-appellant.

DECISION

VELASCO, JR., J p:
Before us is an appeal from the October 25, 2007 Decision of
the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00310-MIN
entitled People of the Philippines v. Roger Ugos y Lanzo alias
"Dodong". The CA affirmed the February 8, 2000 Decision of
the Regional Trial Court (RTC), Branch 15 in Davao City in
Criminal Case No. 39413-97, finding accused-appellant Roger
Ugos guilty of raping his stepdaughter and sentencing him
to reclusion perpetua.DSCIEa
The Facts
On August 11, 1997, accused-appellant was charged with rape
under an Information which reads:
 That on or about August 7, 1997, in the City of
Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused, by
means of force and intimidation, did then and there
willfully, unlawfully and feloniously have carnal
knowledge with . . . [AAA], who is only seven (7)
years of age. 1
On arraignment, accused-appellant entered a not guilty
plea. caHCSD
The prosecution presented the following facts:
On the evening of August 7, 1997, accused-appellant, while
drunk and looking for a bolo,2 asked his stepdaughter, AAA,
then seven years old, to look for her mother at her
grandmother's place. But as her mother was not at her
grandmother's residence, AAA went to look for her at a
neighbor's house accompanied by accused-appellant. Her
mother was not there, either. Accused-appellant thereupon
held AAA and brought her to a nearby creek. Once there, he
undressed her and then proceeded to insert his finger into her
vagina four times. 3 Thereafter, accused-appellant bit AAA's
face and inserted his penis into her vagina. Not content, he
held her by the neck and boxed her in the face and
stomach. 4 He then threatened to kill her if she told her
mother about the incident. 5
When asked upon reaching home about the lumps on her face,
AAA told her mother that she fell at the waiting shed. 6 The
next morning, however, AAA revealed the truth about her
injuries, relating how accused-appellant, while holding her
neck, bit and punched her on the cheek "causing a swelling
and black right eye and bruises on the neck". 7 Mother and
daughter then reported the incident to, only to be ignored by,
the barangay captain. They then repaired to the police station
in Toril to file a rape complaint before Police Station Child and
Youth Officer Leonilo Jickain, 8 after which they proceeded
to BarrioCatigan, the scene of the crime. Mother and daughter
pointed to accused-appellant as the rapist. 9 After a short
chase, he was apprehended and charged. 10
Dr. Danilo Ledesma testified having examined AAA on August
11, 1997. 11 His findings: AAA had sustained contusions on
her left eye and on her cheek. She also had a hemorrhage on
both eyeballs. He also found that there was a complete
hymenal laceration at the 5 and 9 o'clock positions, showing
recent genital trauma. 12
Accused-appellant, the lone witness for the defense, on the
other hand, presented the following story, as summarized in
the RTC decision:
. . . [O]n August 7, 1997 from 7 A.M. to 7 P.M. he was
in his employer's house because it was their barrio's
fiesta, that on reaching home at about 7 P.M. only
[his] step[children] AAA, 7 years old, Reggie 3 years
old and [his] 10 year [old] niece were around. . . . his
wife was not there so he went to their grandmother's
house alone to get her, that his wife was not there,
that he returned home at about 8 P.M. but she was
not there in their house so he went to his ninang
[godmother] and his neighbors looking for his wife,
that he told the victim to go with him to the barrio
which was about one kilometer from their house to
look for his wife, that he told the victim to look for
her mother while he waited in a shed, that the victim
fell because the road was dark and slippery, that his
wife was already home when they returned, that his
wife smelled of liquor that night, that he and his wife
quarreled and he hit his wife, that he did not rape
and hit the victim, that he does not know why he is
charged with rape. 13
The RTC found accused-appellant guilty as charged. The
dispositive portion of the RTC decision reads:
 WHEREFORE, the prosecution having proven the guilt
of the accused beyond reasonable doubt, ROGER
UGOS is hereby sentenced to Reclusion perpetua and
to indemnify [AAA] the sum of Fifty Thousand Pesos
(P50,000.00).
The preventive imprisonment shall be credited to the
sentence of the accused if he voluntarily abides in
writing to follow the rules under Article 29 of the
Revised Penal Code.
SO ORDERED. 14 EaHIDC
Accused-appellant thus appealed the RTC Decision with this
Court.
On December 13, 2004, this Court, in accordance with People
v. Mateo, 15 ordered the transfer of the case to the CA for
intermediate review.
By a Decision dated October 25, 2007, the CA affirmed that of
the RTC with a modification on the award of damages,
disposing as follows:
WHEREFORE, the lower court's Decision dated 8
February 2000 finding appellant guilty beyond
reasonable doubt of the crime of Rape and
sentencing him to suffer the penalty of reclusion
perpetua is AFFIRMED, WITH THE MODIFICATION that
appellant is ordered to pay P50,000.00, representing
moral damages, in addition to the civil indemnity of
P50,000.00 he had been adjudged to pay by the trial
court.cHAIES
SO ORDERED. 16
On November 22, 2007, accused-appellant filed his Notice of
Appeal of the CA Decision.
Accused-appellant presents a lone issue before the Court:
 WHETHER THE TRIAL COURT ERRED IN FINDING HIM
GUILTY OF THE CRIME OF RAPE INSTEAD OF ACTS OF
LASCIVIOUSNESS
Accused-appellant claims that the testimonies of AAA and her
mother reveal only the commission of acts of lasciviousness.
There was no sexual intercourse, according to him, as he only
inserted his finger into her sex organ, adding that this was
what AAA originally told her mother. He surmises that AAA,
being underage, might have been confused with what the
word "rape" meant. Accused-appellant further states that AAA
only testified that he inserted his penis into her vagina when
probed by the prosecutor through leading questions.
Our Ruling
We affirm the appellate court's decision.
AAA, as found by both the trial and appellate courts, was
unequivocal in her testimony that she was raped by accused-
appellant. While her mother may have contradicted AAA's
testimony by stating that AAA reportedly told her she was
merely "fingered" by accused-appellant, it is AAA's clear and
credible testimony that should determine accused-appellant's
guilt. She detailed both in direct and cross-examinations how
accused-appellant violated her; she minced no words about
what accused-appellant did to her on August 7, 1997.
Accused-appellant does not dispute AAA's testimony, arguing
that she might have been coached in her answers. He likewise
states that what AAA and her mother reported to the police
was an attempt to rape AAA. It was only when the prosecutor
asked her leading questions that she testified that accused-
appellant inserted his penis into her vagina.
The Court is not persuaded by his contentions for the following
reasons: First, the testimony of Police Officer Jickain, who
related that AAA's mother approached him on August 7, 1997
while he was on duty as Police Station Child and Youth Officer,
has documentary support. He stated that AAA's mother
reported that accused-appellant raped her
daughter. 17 Second, accused-appellant's contention is at
odds with what are contained in the records, which show that
during cross-examination the trial court asked AAA what
accused-appellant did to her, as follows:
COURT:
Q You said it is painful, is it because the finger was
inserted or the penis?
A Because he inserted his finger into my vagina.
Q He did not insert his penis?
A He inserted. 18
The prosecutor, on the other hand, examined AAA in this wise:
Q Who mounted you?
A Ondongan.
Q This Ondongan is in court could you point him?
A (Witness pointing to a person seated on a chair
with white t-shirt printed navy when asked he
said he is Roger Ugos).
Q What did Ondongan or your stepfather do?
A He placed his hand on my vagina.
Q Were you still dressed?
A Yes, Sir.
Q What did he do to your dress?
A He inserted his finger [in] my vagina 4 times.
Q When he did that to you were you still dressed or
were you already naked?19
xxx xxx xxx
Q What else?
 A After that the accused stood up on a coco trunk
[and] inserted his finger in my vagina four times.
Q What else did he do, did you see his penis?
A He inserted inside my vagina.
Q What did you feel when he inserted his penis in
your vagina?
A I was angry, because he mounted me and it was
very painful. 20 HIaSDc
The line of leading questions objected to by accused-appellant
was warranted given the circumstances. A child of tender
years may be asked leading questions under Section 10 (c),
Rule 132 of the Rules of Court. Sec. 20 of the 2000 Rule on
Examination of a Child Witness also provides, "The court may
allow leading questions in all stages of examination of a child if
the same will further the interests of justice".
The afore-cited rule was formulated to allow children to give
reliable and complete evidence, minimize trauma to children,
encourage them to testify in legal proceedings, and facilitate
the ascertainment of truth. 21
We find that the alleged coaching used in the course of
examining AAA merely aided her in testifying with more detail
and did not suggest to her the answers integral to the actual
commission of rape.
What is more, AAA's charge of rape finds support in the
medical report on her physical injuries. The medico-legal
witness, Dr. Ledesma, testified that he examined AAA four
days after the rape incident and found fresh bruises on her
face and lacerations in her vagina.22

Accused-appellant's denial of the crime cannot prevail over the

positive testimony of the victim. As held in People v. Suarez, a
rape victim's straightforward and candid account, corroborated
by the medical findings of the examining physician, is
sufficient to convict the accused. 23 This conclusion becomes
all the more firm where, as in this case, the child-victim takes
the witness stand. Previous decisions involving rape cases
have shown us the high improbability that a girl of tender
years would impute to any man a crime so serious as rape if
what she claims is not true. 24 Also, as correctly pointed out
by the CA, corroboration of a child's testimony is not even
required under Sec. 22 of the Rule on Examination of a Child
Witness, thus:
Corroboration shall not be required of a testimony of
a child. [The child's] testimony, if credible by itself,
shall be sufficient to support a finding of fact,
conclusion, or judgment subject to the standard of
proof required in criminal and non-criminal cases.
Accused-appellant's suggestion that the charge against him
could have been fabricated, an offshoot of the argument he
had with AAA's mother, has nothing to support itself. There is
likewise nothing in the records indicating that the prosecution
witnesses testified against accused-appellant out of malice.
A rape victim's testimony as to who abused her is credible
where she has absolutely no motive to incriminate and testify
against the accused. 25 Categorical and positive identification
of an accused, without any showing of ill motive on the part of
the eyewitnesses testifying on the matter, prevails over denial
and alibi, which are negative and self-serving. 26 We thus
affirm the trial court's appreciation of the testimonial evidence
adduced. It is basic that the trial court's evaluation of the
testimonies of witnesses should be accorded the highest
respect as it has the best opportunity to observe directly the
demeanor of witnesses on the stand and to establish whether
they are telling the truth. 27
As to the award of damages, the RTC was correct in awarding
civil indemnity in the amount of PhP50,000. Civil indemnity
needs no proof other than the fact of the commission of the
offense. 28 The award is proper even if the minority of AAA
was alleged. There was no allegation in the Information that
accused-appellant was the victim's stepfather, precluding a
charge for qualified rape which would have increased the
award to PhP75,000.
The CA was also correct in additionally awarding moral
damages of PhP50,000. This is separate and distinct from civil
indemnity. It does not require proof of mental and physical
suffering. 29
As a final note, we reject accused-appellant's argument that
had he been found to have merely fingered AAA's sexual
organ, he would only be convicted of acts of lasciviousness. As
held in De Castro v. Fernandez, Jr., the new law on rape now
includes sexual assault. 30Although the amendment to the
law on rape was made after accused-appellant was charged, it
is well to point out that with its expanded definition, rape can
now be committed through sexual assault by inserting "any
instrument or object, into the genital or anal orifice of another
person". 31 DcTaEH
WHEREFORE, the appeal of accused-appellant is DISMISSED.
The Decision dated October 25, 2007 of the CA in CA-G.R. CR-
H.C. No. 00310-MIN finding him guilty of the crime of rape is
AFFIRMED IN TOTO.
No costs.
SO ORDERED.
||| (People v. Ugos, G.R. No. 181633, [September 12, 2008],
586 PHIL 765-775)

EN BANC

[G.R. No. 172322. September 8, 2006.]

 PEOPLE OF THE PHILIPPINES, appellee, vs. RENE
SANTOS, appellant.

DECISION

YNARES-SANTIAGO, J p:
For allegedly sexually assaulting 5-year-old Veverly Ann
Cabanes y Mabalot, Rene Santos was charged with Rape in an
Information 1 alleging
That on or about in the afternoon of between 17th
and 23rd of July 1999 in the [B]arangay of Sulipan,
[M]unicipality of Apalit, [P]rovince of Pampanga,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, RENE
SANTOS, with lewd designs and by means of deceit,
force and intimidation, did then and there willfully,
unlawfully and feloniously succeeded in having
carnal knowledge with Veverly Ann Cabanes y
Mabalot, 5 years of age, against her will.
Contrary to law.
Upon arraignment, appellant pleaded not guilty to the
charge. 2 Trial thereafter ensued, after which the Regional Trial
Court of Macabebe, Pampanga, Branch 55, rendered
judgment 3 imposing the death penalty thus:
WHEREFORE, on the basis of all the foregoing, the
Court finds the accused guilty beyond reasonable
doubt of the crime of Rape penalized under Article
335 of the Revised Penal Code, and as a
consequence of which, this Court hereby sentences
him to suffer the mandatory penalty of death and to
indemnify the offended party in the amount of
P75,000.00 and to pay the costs of the proceedings.
 SO ORDERED. 4
Owing to the imposition of the death penalty, the case was
elevated to the Court for automatic review. Pursuant, however,
to the ruling in People v. Mateo, 5 the case was referred to the
Court of Appeals for evaluation in a Resolution dated
September 7, 2004.6
In his appeal, appellant alleged that
1. THE TRIAL COURT ERRED IN NOT CONSIDERING
THE DEFENSE OF THE ACCUSED THAT WOULD
EXCULPATE HIM FROM THE CRIME OF RAPE.
2. THE TRIAL COURT ERRED WHEN IT IMPOSED UPON
THE ACCUSED THE MAXIMUM PENALTY OF
DEATH.
In its Decision 7 dated October 19, 2005, the appellate court
affirmed the judgment of conviction and, in addition to the
P75,000.00 civil indemnity imposed, ordered appellant to pay
P50,000.00 as moral damages and P25,000.00 as exemplary
damages. IESTcD
The prosecution's version of the incident narrates that
sometime between July 17 and 23, 1999, Veverly was playing
at the northern portion of Sulipan Bridge, Apalit, Pampanga,
when she was taken by appellant and brought to his house,
which is about one kilometer away from Veverly's residence.
While inside the house, appellant took off the clothes of
Veverly and had sexual intercourse with her. 8 The victim felt
pain and her vagina bled. 9
After a complaint was lodged with the barangay and the police
authorities, Veverly was brought to the Jose B. Lingad
Memorial Regional Hospital in San Fernando, Pampanga, where
she was examined. 10 The Medico Legal O.B. Gyne Report
indicated multiple superficial healed lacerations. 11 The
victim, who was already six years old when she testified in
court, 12 positively identified the appellant during the trial and
testified on the affidavit she executed before the police
officers of Apalit, Pampanga. 13
Appellant's version of the incident is one of denial and alibi. He
testified that he was the driver of Miriam Maglalang who lived
in Barangay Capalangan, Apalit, Pampanga which is a
kilometer away from his place in Sulipan. 14 Appellant usually
leaves his house at 7:00 a.m. and stays at his workplace up to
7:30 p.m. or sometimes even up to 10:00 p.m. when
necessary. 15
His job was to drive his employer whenever the latter had
appointments in Manila. 16When Maglalang had no
appointments, he drove a passenger jeepney plying San
Fernando, Pampanga and Malolos, Bulacan, a route which
passed Sulipan. 17 On July 17, 1999, appellant drove his
employer to the Wheels Motor Shop at E. Rodriguez Avenue,
Quezon City leaving Apalit at 9:00 a.m. and returning at 8:30
p.m. On July 18, 1999, appellant left his house at 6:00 a.m.
arriving at his workplace at 7:30 a.m. and from there he
delivered surplus bumpers to Malinta, Manila. 18 On July 19,
20, 21 and 22, 1999, appellant plied the San Fernando-Malolos
route on board his passenger jeepney. 19 On July 23, 1999,
appellant went to Makati leaving Apalit at 10:00 a.m.,
returning only at 10:00 p.m. 20
On July 30, 1999, between 6:30 to 7:30 a.m., 21 he was
sweeping the ground in front of his house when a white car
pulled over. 22 The vehicle's occupants introduced themselves
as police officers and asked him if he was Rene
Santos. 23 Thereafter, he was taken to the police
headquarters for questioning. Once they arrived at the
headquarters, he was detained and remained in detention up
to the time of his trial. 24
We have examined the evidence on record and find no cogent
reason to disturb the findings of the trial court and the Court of
Appeals. We accord great respect on the findings of the trial
court on the credibility of witnesses and their testimonies, for
the trial judge observes the behavior and demeanor of the
witnesses in court. His evaluation or assessment of the
credibility of witnesses and of testimony acquires greater
significance in rape cases because from the nature of the
offense, the only evidence that can oftentimes be offered to
establish the guilt of the accused is the victim's testimony." 25
This credibility given by the trial court to the rape victim is an
important aspect of evidence which appellate courts can rely
on because of its unique opportunity to observe the witnesses,
particularly their demeanor, conduct and attitude during the
direct and cross-examination by counsel. 26 It is likewise well
established that the testimony of a rape victim is generally
given full weight and credit, more so, if she is a 5-year-old
child as in this case. The revelation of an innocent child whose
chastity has been abused deserves full credit, as her
willingness to undergo the trouble and the humiliation of a
public trial is an eloquent testament to the truth of her
complaint. In so testifying, she could only have been impelled
to tell the truth, especially in the absence of proof of ill
motive. 27
The trial court and the Court of Appeals gave credence to the
testimony of Veverly who was only six years old when she
narrated the sordid details of her ravishment, viz:
FISCAL PINEDA
Questioning
If Rene Santos is inside this courtroom, can you
point at him?
WITNESS
Answering
Yes, sir.
Q Please point at him?
A There he is, sir.
INTERPRETER
Witness pointed to a person inside the courtroom
who [when] asked gave his name as Rene
Santos.
Q Between the period of July 17 to 23, 1999, do you
remember where were you?
A Yes, sir.
Q Where were you then?
A...
Q You said you know this Rene Santos, why do you
know him?
A Because he raped me, sir.
Q Can you remember when was that?
A Yes, sir.
Q When?
WITNESS
Answering
I do not know when, sir. IHTASa
FISCAL PINEDA
Questioning
Do you recall where?
A In their house, sir.
Q And where is that house?
A In Sulipan, sir.
Q In Apalit, Pampanga?
A Yes, sir.
Q You said that this Rene Santos raped you,
what particular actuations did he do?
A He inserted his penis, sir.
Q Where?
A Here, sir, in my vagina.
INTERPRETER
Witness pointing to her private organ.
Q Where did that happen?
A In their house, sir.
Q In what portion of his house?
A Inside their house, sir.
Q You said that Rene Santos inserted his penis
into your vagina, what did you feel?
A I felt pain, sir.
Q When he inserted his penis into your vagina did he
have any clothings (sic)?
A...
ATTY. VIOLA
Leading, Your Honor.
COURT
Reform the question. aCTcDH
FISCAL PINEDA
Questioning
When he inserted his penis into your vagina, what
was his appearance?
WITNESS
Answering
 It was hard, sir.
Q What was hard?
A His penis, sir.
COURT
Questioning
Is this Rene Santos inside this courtroom?
WITNESS
Answering
Yes, sir.
Q Point to him?
A There he is, sir.
INTERPRETER
Witness pointed to a person inside the courtroom
who when asked gave his name as Rene
Santos. 28 (Emphasis and italics supplied)
Counsel for the defense attempted, albeit futilely, to impeach
the credibility of the victim.29 We have held time and again
that testimonies of rape victims who are young and immature,
as in this case, deserve full credence considering that no
young woman, especially one of tender age, would concoct a
story of defloration, allow an examination of her private parts,
and thereafter pervert herself by being subject to a public trial
if she was not motivated solely by the desire to obtain justice
for the wrong committed against her. It is highly improbable
for an innocent girl of tender years like the victim, who is very
naive to the things of this world, to fabricate a charge so
humiliating not only to herself but also to her family. Stated
succinctly, it is beyond the mind-set of a six-year old child, like
the offended party herein, to fabricate a malicious accusation
against appellant if the crime did not truly transpire. 30 Verily,
when a guileless girl of six credibly declares that she has been
raped, she has said all that is necessary to prove the
ravishment of her honor. 31
Appellant's reliance on the corroboration by his wife of his alibi
cannot overturn the clear and categorical declarations of the
victim identifying him as the perpetrator of the crime. The
corroboration should, furthermore, be received with caution
coming as it does from appellant's spouse whose emotional
ties and interest in his acquittal cannot be gainsaid. Indeed, it
has even been held that some wives are overwhelmed by
emotional attachment to their husbands such that they
knowingly or otherwise suppress the truth and act as a
medium for injustice to preponderate. 32
In addition to his defense of alibi, appellant further faults the
trial court with "acting as the prosecutor and the judge at the
same time" 33 for allegedly initiating and propounding "the
questions, short of supplying the desired answer from the
witness." 34

The argument is tenuous. As has been pointed out in People v.

Guambor: 35
The trial judge is accorded a reasonable leeway in
putting such questions to witnesses as may be
essential to elicit relevant facts to make the record
speak the truth. Trial judges in this jurisdiction are
judges of both law and the facts, and they would be
negligent in the performance of their duties if they
permitted a miscarriage of justice as a result of a
failure to propound a proper question to a witness
which might develop some material bearing upon the
outcome. In the exercise of sound discretion, he may
put such question to the witness as will enable him to
formulate a sound opinion as to the ability and
willingness of the witness to tell the truth. A judge
may examine or cross-examine a witness. He
 may propound clarificatory questions to test
the credibility of the witness and to extract the
truth. He may seek to draw out relevant and
material testimony though that testimony may
tend to support or rebut the position taken by
one or the other party. It cannot be taken
against him if the clarificatory questions he
propounds happen to reveal certain truths
which tend to destroy the theory of one party.
(Emphasis supplied)
The trend in procedural law is to give a wide latitude to the
courts in exercising control over the questioning of a child
witness. 36 Under Sections 19 to 21 of the Rules on
Examination of a Child Witness, 37 child witnesses may testify
in a narrative form andleading questions may be allowed by
the trial court in all stages of the examination if the same will
further the interest of justice. 38 It must be borne in mind that
the offended party in this case is a 6-year old minor who was
barely five when she was sexually assaulted. As a child of such
tender years not yet exposed to the ways of the world, she
could not have fully understood the enormity of the bestial act
committed on her person. Indeed
Studies show that children, particularly very young
children, make the "perfect victims." They naturally
follow the authority of adults as the socialization
process teaches children that adults are to be
respected. The child's age and developmental level
will govern how much she comprehends about the
abuse and therefore how much it affects her. If the
child is too young to understand what has happened
to her, the effects will be minimized because she has
no comprehension of the consequences. Certainly,
children have more problems in providing
accounts of events because they do not
understand everything they experience. They
 do not have enough life experiences from which to
draw upon in making sense of what they see, hear,
taste, smell and feel. Moreover, they have a
limited vocabulary. . . . With her limited
comprehension, the child could not have a
perfect way of relating that she had been
sexually abused. 39 (Emphasis and italics supplied)
The record discloses that the questions propounded by the
judge were intended to elicit the truth from the child witness.
This perceived undue inquisitiveness of the judge did not
unduly harm the substantial rights of the appellant. In fact, it
is only to be expected from the judge who, with full
consciousness of his responsibilities could not, and should not,
easily be satisfied with incompleteness and obscurities in the
testimonies of the witness. 40
While judges should as much as possible refrain from showing
partiality to one party and hostility to another, it does not
mean that a trial judge should keep mum throughout the trial
and allow parties to ask questions that they desire, on issues
which they think are important, when the former are improper
and the latter immaterial. If trials are to be expedited, judges
must take a leading part therein, by directing counsel to
submit evidence on the facts in dispute by asking clarifying
questions, and by showing an interest in a fast and fair trial.
Judges are not mere referees like those of a boxing bout, only
to watch and decide the results of a game; they should have
as much interest as counsel in the orderly and expeditious
presentation of evidence, calling attention of counsel to points
at issue that are overlooked, directing them to ask the
question that would elicit the facts on the issues involved, and
clarifying ambiguous remarks by witnesses. Unless they take
an active part in trials in the above form and manner, and
allow counsel to ask questions whether pertinent or
impertinent, material or immaterial, the speedy administration
of justice which is the aim of the Government and of the
people cannot be attained. 41
Appellant also invites the Court's attention to what he
perceives as uncharacteristic behavior of the victim who,
according to him, should be traumatized after undergoing "the
onslaught of sexual molestation." 42 He insists that it is
unnatural for the 6-year old victim to go to school the day
following her supposedly shocking experience. He also points
out that "she was answering not as seriously as one who has
been sexually molested." 43
The contention is neither novel nor persuasive. There is no
standard form of behavior that can be expected of rape
victims after they have been defiled because people react
differently to emotional stress. 44 Nobody can tell how a
victim of sexual aggression is supposed to act or behave after
her ordeal. 45 Certainly, it is difficult to predict in every
instance how a person especially a 6-year old child, as in
this case would react to a traumatic experience. 46 It is not
proper to judge the actions of rape victims, especially children,
who have undergone the harrowing experience of being
ravished against their will by the norms of behavior expected
under such circumstances from mature persons.47 Indeed, the
range of emotions shown by rape victims is yet to be captured
even by calculus. 48 It is thus unrealistic to expect uniform
reactions from them. 49 In fact, the Court has not laid down
any rule on how a rape victim should behave immediately
after her ravishment. 50
In his attempt to extricate himself from criminal liability,
appellant further insinuates that his sons may be the possible
perpetrators of the felony saying that "it could have been Rene
Santos, Jr. or Michael Santos who could have raped the victim"
considering that Veverly and her sister Jacqueline allegedly
complained earlier that they were raped by the two
brothers. 51
If at all, the foregoing suggestion that his sons may have been
the malefactors who sexually assaulted the victim and her
sister only succeeds in underscoring his moral depravity and
his capacity to commit the crime. Only one whose degree of
wickedness plumbs the deepest depths of criminal perversity
would have no qualms of laying the onus of his guilt even on
his own offspring and, worse, blacken the memory of one of
them who is already dead in his endeavor to exculpate himself
from the consequences of his felonious acts. aDSHIC
Much less convincing is appellant's proposition that ill feelings
and ill motives of the victim's mother impelled the filing of the
charges against him. Ill-motives become inconsequential
where there are affirmative or categorical declarations
establishing appellant's accountability for the felony. 52 We
have, furthermore, observed not a few persons convicted of
rape have attributed the charges against them to family feuds,
resentment or revenge. 53 However, as borne out by a
plethora of cases, family resentment, revenge or feuds have
never swayed us from giving full credence to the testimony of
a complainant for rape, especially a minor who remained
steadfast and unyielding throughout the direct and cross-
examination that she was sexually abused. 54It would take a
certain degree of perversity on the part of a parent, especially
a mother, to concoct a false charge of rape and then use her
daughter as an instrument to settle her grudge. 55
Given the foregoing factual, legal and jurisprudential scenario,
we agree with both the trial and appellate courts that the
appellant is guilty as charged. He was, likewise, correctly
meted the penalty of death because rape committed against a
"child below seven (7) years old" is a dastardly and repulsive
crime which merits no less than the imposition of capital
punishment under Article 266-B of the Revised Penal
Code. 56 That Veverly was only five years old when she was
ravished is clear from her birth certificate.57
However, with the passage of Republic Act No. 9346 entitled
"An Act Prohibiting The Imposition Of The Death Penalty In The
Philippines," the penalty that should be meted isreclusion
perpetua, thus:
SEC. 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
(b) the penalty of life imprisonment, when the law
violated does not make use of the nomenclature of
the penalties of the Revised Penal Code.
Pursuant to the same law, appellant shall not be eligible for
parole under Act No. 4103, otherwise known as
the Indeterminate Sentence Law.
In line with prevailing jurisprudence, the Court affirms the
award of P75,000.00 as civil indemnity and P25,000.00 as
exemplary damages; and increases the Court of Appeals'
award of moral damages from P50,000.00 to P75,000.00. 58
WHEREFORE, the Decision of the Court of Appeals in CA-G.R.
H.C. No. 01424 finding appellant Rene Santos guilty beyond
reasonable doubt of the crime of rape and ordering him to
indemnify the victim the amounts of P75,000.00 as civil
indemnity and P25,000.00 as exemplary damages, is
AFFIRMED with the MODIFICATION that the award of moral
damages is increased to P75,000.00 and that in lieu of the
death penalty, appellant Rene Santos is hereby sentenced to
suffer the penalty of reclusion perpetua without possibility of
parole. cDTHIE

SO ORDERED.
||| (People v. Santos, G.R. No. 172322, [September 8, 2006],
532 PHIL 752-769)

SECOND DIVISION

[A.M. No. RTJ-03-1753. February 5, 2004.]

[Formerly OCA IPI No. 03-1652-RTJ]

CAPISTRANO OBEDENCIO, JR., complainant, vs.

JUDGE JOAQUIN M.MURILLO, PRESIDING JUDGE,
RTC, BRANCH 26, MEDINA, MISAMIS
ORIENTAL, respondent.

RESOLUTION

QUISUMBING, J p:
In a letter-complaint, 1 complainant Capistrano Obedencio, Jr.,
charged respondent Judge Joaquin M. Murillo, Presiding Judge
of the Regional Trial Court of Medina, Misamis Oriental, Branch
26, of unjustly dismissing Criminal Case No. 1401-M (2000) for
rape, entitled "People v. Dexter Z. Acenas."
Complainant averred that on May 3, 2000, he and his wife
assisted their 14-year-old daughter, Licel Acenas Obedencio, in
filing with the Office of the Provincial Prosecutor, Hall of Justice
in Cagayan de Oro City, a criminal complaint for rape allegedly
committed upon her when she was 11 years old by her uncle,
Dexter Z. Acenas. After the preliminary investigation, which
the accused did not attend, the case was filed in respondent
judge's sala. 2
On May 25, 2001, following Licel's abduction from their
house, 3 complainant sought to secure from the court a copy
of the warrant of arrest issued against the accused. To his
great surprise, respondent judge told him that the case had
been dismissed three days earlier on May 22,
2001. 4 According to respondent judge, Licel Obedencio had
come to court, accompanied by her maternal grandparents
and Asst. Provincial Prosecutor Emmanuel Hallazgo. There she
was presented to affirm her affidavit of desistance. 5
Complainant claims that the dismissal was marred by serious
irregularities. He specifically lamented the absence of any
subpoena or notice of hearing from the court to him, his wife,
or their counsel. He believes that since Prosecutor Hallazgo,
Licel's maternal grandparents, and the accused are relatives,
this fact contributed to the unjust dismissal of the case. 6
In his comment, 7 respondent judge stated that he heard
Criminal Case No. 1401-M (2000) on May 22, 2001, upon the
request of Prosecutor Hallazgo who was prosecuting the case.
During the hearing, Prosecutor Hallazgo presented an affidavit
of desistance executed by Licel. Then, Licel took the witness
stand and was asked on matters contained in her affidavit. She
recanted the allegations in her affidavit-complaint and denied
having been molested by her uncle, Dexter. She explained that
her mother forced her to file the rape charge because of family
inheritance problems. Respondent judge asserts that, with the
filing of the affidavit of desistance, the court had no other
recourse but to dismiss the case. 8
The Office of the Court Administrator (OCA), through Deputy
Court Administrator Christopher O. Lock, found respondent
judge liable for ignorance of the law for unjustly dismissing
Criminal Case No. 1401-M (2000). OCA recommended that
respondent judge be reprimanded with warning that a
repetition of the same or similar offense would be dealt with
more severely. 9
This Court agrees with the findings of the OCA, but not with
the recommended penalty.TcDIEH
Article 220(6) 10 of the Family Code gives to complainant and
his wife the right and duty to represent Licel in all matters
affecting her interest. Thus, they were entitled to be notified
and to attend every hearing on the case. As a judge,
respondent is duty-bound to acquaint himself with the cases
pending before him. 11 He should have known that Licel filed
the criminal complaint with the assistance of her parents, who
are her natural guardians. 12 It was incumbent upon
respondent judge to inquire into the reason behind their
nonappearance before the court instead of simply relying on
the bare explanation of the defense counsel that he and his
client could not find Licel's parents. 13 Respondent judge
ought to remember that the accused, Dexter Acenas, is the
maternal uncle of the victim. That Licel came to court with her
maternal grandparents, and not her parents, on the day she
was examined to affirm her affidavit of desistance, should
have alerted respondent judge to be more circumspect. Being
still a minor, Licel cannot fully comprehend for herself the
impact and legal consequence of the affidavit of desistance.
Given her tender age, the probability is that Licel succumbed
to illicit influence and undue pressure on her to desist from
pursuing her complaint.
Licel was only 14 years old, definitely a minor, on May 22,
2001, when she was presented before respondent's sala to
affirm the execution of her affidavit of desistance. This being
the case, said affidavit should have been executed with the
concurrence of her parents. Licel could not validly give consent
to an affidavit of desistance, for a minor is incompetent to
execute such an instrument. Yet, notwithstanding the absence
of her parents' conformity to the affidavit of desistance and
lack of notice to them or their lawyer of the scheduled hearing,
respondent judge dismissed the criminal case. Truly, he should
have exercised more prudence and caution instead of
perfunctorily dismissing the case, considering the nature and
gravity of the offense charged.
At the very least, herein respondent should have appointed a
guardian ad litem for Licel, to protect her welfare and interest,
instead of hastily dismissing the rape case. The Rule on
Examination of a Child Witness, 14 which took effect on
December 15, 2000, governs the examination of child
witnesses who are victims of, accused of, or witnesses to a
crime. In the absence or incapacity of the parents to be the
guardian, Section 5 (a) 15 of said rule provides that the court
may appoint a guardian ad litem to promote the best interests
of the child. This rule was already in effect when respondent
judge dismissed the rape case on May 22, 2001.
Respondent is reminded that a judge is the visible
representation of the law and, more important, of justice. 16 A
judge owes it to the public to be knowledgeable, for ignorance
of the law is the mainspring of injustice. 17 A judge must know
the laws and apply them properly in all good faith. 18 Rule
3.01, Canon 3 of the Code of Judicial Conduct requires a judge
to be faithful to the law and to maintain professional
competence. He should conduct the functions and perform the
duties of his office with due regard to the integrity of the
system of the law itself, remembering that he is not a
depository of arbitrary power, but a judge under the sanction
of law. 19 Where the law transgressed is simple and
elementary, the failure to know it constitutes gross ignorance
of the law. 20
For respondent judge's infraction, the penalty of reprimand,
recommended by the OCA, is inapplicable. It is too light and
incommensurate to the gravity of the administrative offense
charged and proved. Instead, the penalty of fine is proper in
this case, followingSandoval v. Garin, 21 in the amount of
P10,000.00.
WHEREFORE, the respondent Judge Joaquin M. Murillo,
Presiding Judge of the Regional Trial Court of Medina, Misamis
Oriental, Branch 26, is found LIABLE for gross ignorance of the
law in connection with the unjust dismissal of Criminal Case
No. 1401-M (2000). He is ORDERED to pay the fine of Ten
Thousand Pesos (P10,000) and ADMONISHED to be more
circumspect in the performance of his judicial duties and
functions. He is further warned sternly that a repetition of the
same or similar offense would be dealt with more severely.
SO ORDERED.
||| (Obedencio, Jr. v. Murillo, A.M. No. RTJ-03-1753, [February 5,
2004], 466 PHIL 592-599)

EN BANC

[G.R. No. 140895. July 17, 2003.]

PEOPLE OF THE PHILIPPINES, appellee, vs.

ALMA BISDA y GAUPO and GENEROSA "JENNY
ROSE" BASILAN y PAYAN, appellants.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-apellant.

SYNOPSIS

This case is an automatic review of the decision convicting

appellants for the crime of kidnapping for ransom and
sentencing them to the penalty of death. The Court affirmed
the convictions and the single indivisible penalty of death was
imposed on appellants regardless of the aggravating
circumstance of use of a motor vehicle and the mitigating
circumstance of voluntary surrender of appellant
Basilan. cSIADH
Records revealed that appellants fetched 5-year old Angela
from her school, telling her that her parents were waiting at
the Jollibee but at the same time, held Angela's hand tightly
and poked a knife at her. Thereafter, boarding a taxi, Angela
was taken to a dirty house and henceforth taken care of but
kept locked in the house. Meantime, the parents of Angela
were worriedly negotiating with the kidnapper who was asking
money for ransom. Luckily, the PAOCTF operatives were able
to follow the suspicious appellantBisda and accosted her.
Appellant Basilan later surrendered.

SYLLABUS

1. CRIMINAL LAW; KIDNAPPING OR SERIOUS ILLEGAL

DETENTION; ELEMENTS. For the accused to be convicted of
kidnapping or serious illegal detention, the prosecution is
burdened to prove beyond reasonable doubt all the elements
of the crime, namely, (1) the offender is a private individual;
(2) he kidnaps or detains another, or in any manner deprives
the latter of his liberty; (3) 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) the kidnapping or
detention lasts for more than three days; (b) it is committed by
simulating public authority; (c) any serious physical injuries
are inflicted upon the person kidnapped or detained or threats
to kill him are made; or (d) the person kidnapped or detained
is a minor, female, or a public officer. If the victim of
kidnapping and serious illegal detention is a minor, the
duration of his detention is immaterial. Likewise, if the victim
is kidnapped and illegally detained for the purpose of extorting
ransom, the duration of his detention is immaterial. The word
"female" in paragraph 1(4) of Article 267 of the Revised Penal
Code refers to the gender of the victim and not of the offender.
The essence of the crime of kidnapping is the actual
deprivation of the victim's liberty under any of the above-
mentioned circumstances, coupled with indubitable proof of
intent of the accused to effect the same. There must be a
purposeful or knowing action by the accused to forcibly
restrain the victim because taking coupled with intent
completes the offense. Kidnapping which involves the
detention of another is by its nature a continuing
crime. aIcDCT
2. ID.; ID.; ID.; LACK OF CONSENT, PRESUMED WHERE THE
VICTIM IS A FIVE-YEAR OLD MINOR. The victim's lack of
consent is also a fundamental element of kidnapping. The
involuntariness of the seizure and detention is the very
essence of the crime. The general rule is that the prosecution
is burdened to prove lack of consent on the part of the victim.
However, where the victim is a minor especially if she is only
five years old, lack of consent is presumed. She is incompetent
to assent to seizure and illegal detention. In this case, Angela
was merely five years old when she was kidnapped; thus
incapable of giving consent. The consent of such child could
place the appellants in no better position than if the act had
been done against her will. The appellants cannot rely on
Angela's initial willingness to go along with them to the
restaurant.
3. ID.; ID.; KIDNAPPING AND ILLEGAL DETENTION, NOT
NEGATED BY THE FACT THAT THE VICTIM WAS TAKEN CARED
OF. Although Angela was free to roam around in the "dirty
house," to draw and to watch television during the entire
period of her detention, and was regularly fed and bathed, the
appellants are nevertheless guilty of kidnapping and illegally
detaining the five-year-old child. As Judge McGill of the United
States Court of Appeals said in United States v. McCabe, "to
accept a child's desire for food, comfort as the type of will or
consent contemplated in the context of kidnapping would
render the concept meaningless."
4. ID.; ID.; SERIOUS ILLEGAL DETENTION INCLUDES
DEPRIVATION OF LIBERTY IN WHATEVER FORM AND FOR
WHATEVER LENGTH OF TIME. In People v. Baldogo, this
Court held that illegal serious detention under Article 267 of
the Revised Penal Code as amended, includes not only the
imprisonment of a person but also the deprivation of her
liberty in whatever form and for whatever length of time. It
includes a situation where the victim cannot go out of the
place of confinement or detention or is restricted or impeded
in his liberty to move. In this case, the door to the office of
appellant Bisda was locked while Angela was detained therein.
Even if she wanted to escape and go home, Angela, at her
age, could not do so all by herself. During the period of her
confinement, Angela was under the control of the appellants.
The helpless child was waiting and hoping that she would be
brought home, or that her parents would come and fetch her.
5. ID.; CONSPIRACY; HOW ESTABLISHED. Article 8 of the
Revised Penal Code provides that there is conspiracy when two
or more persons agree to commit a felony and decide to
commit it. In People v. Pagalasan, this Court held that
conspiracy need not be proven by direct evidence. It may be
inferred from the conduct of the accused before, during and
after the commission of the crime, showing that they had
acted with a common purpose and design. Conspiracy may be
implied if it is proved that two or more persons aimed by their
acts towards the accomplishment of the same unlawful object,
each doing a part so that their combined acts, though
apparently independent of each other were, in fact, connected
and cooperative, indicating a closeness of personal association
and a concurrence of sentiment. Conspiracy once found,
continues until the object of it has been accomplished unless
abandoned or broken up. To hold an accused guilty as a co-
principal by reason of conspiracy, he must be shown to have
performed an overt act in pursuance or furtherance of the
complicity. There must be intentional participation in the
transaction with a view to the furtherance of the common
design and purpose.
6. ID.; ID.; LIABILITY OF CONSPIRATORS. Each conspirator is
responsible for everything done by his confederates which
follows incidentally in the execution of a common design as
one of its probable and natural consequences even though it
was not intended as part of the original design. Responsibility
of a conspirator is not confined to the accomplishment of a
particular purpose of conspiracy but extends to collateral acts
and offenses incident to and growing out of the purpose
intended. Conspirators are held to have intended the
consequences of their acts and by purposely engaging in
conspiracy which necessarily and directly produces a
prohibited result, they are, in contemplation of law, chargeable
with intending that result. Conspirators are necessarily liable
for the acts of another conspirator unless such act differs
radically and substantively from that which they intended to
commit. As Judge Learned Hand put it in United States v.
Andolscheck, "when a conspirator embarks upon a criminal
venture of indefinite outline, he takes his chances as to its
content and membership, so be it that they fall within the
common purposes as he understands them." HAECID
7. REMEDIAL LAW; EVIDENCE; PRESENTATION OF EVIDENCE;
EXAMINATION OF WITNESSES SHALL BE DONE IN OPEN COURT
AND UNDER OATH; OATH; DEFINITION AND PURPOSE;
COMPETENCE OF WITNESS. Section 1, Rule 132 of the
Revised Rules of evidence provides that the examination of
witnesses shall be under oath or affirmation: SECTION
1. Examination to be done in open court. The examination
of witnesses presented in a trial or hearing shall be done in
open court, and under oath or affirmation. Unless the witness
is incapacitated to speak, or the question calls for a different
mode of answer, the answers of the witness shall be given
orally. An oath is defined as an outward pledge, given by the
person taking it that his attestation or promise is made under
an immediate sense of his responsibility to God. The object of
the rule is to affect the conscience of the witness and thus
compel him to speak the truth, and also to lay him open to
punishment for perjury in case he willfully falsifies. A witness
must be sensible to the obligation of an oath before he can be
permitted to testify. It is not, however, essential that he knows
how he will be punished if he testify falsely. Under modern
statutes, a person is not disqualified as a witness simply
because he is unable to tell the nature of the oath
administered to a witness. In order that one may be
competent as a witness, it is not necessary that he has a
definite knowledge of the difference between his duty to tell
the truth after being sworn and before, or that he be able to
state it, but it is necessary that he be conscious that there is a
difference.
8. ID.; ID.; ID.; ID.; ID.; CHILD WITNESS; OBJECTION TO
COMPETENCY, WHEN MADE. It cannot be argued that simply
because a child witness is not examined on the nature of the
oath and the need for her to tell the whole truth, the
competency of the witness and the truth of her testimony are
impaired. If a party against whom a witness is presented
believes that the witness is incompetent or is not aware of his
obligation and responsibility to tell the truth and the
consequence of him testifying falsely, such party may pray for
leave to conduct a voire dire examination on such witness to
test his competency. The court may motu proprio conduct
the voir dire examination. In United States v. Buncad, this
Court held that when a child of tender age is presented as a
witness, it is the duty of the judge to examine the child to
determine his competency. InRepublic v. Court of Appeals, this
Court held that: [W]hen a witness is produced, it is a right and
privilege accorded to the adverse party to object to his
examination on the ground of incompetency to testify. If a
party knows before trial that a witness is incompetent,
objection must be made before trial that a witness is
incompetent, objection must be made before he has given any
testimony; if the incompetency appears on the trial, it must be
interposed as soon as it becomes apparent. The competency
of a person to take the prescribed oath is a question for the
trial court to decide. DaHcAS
9. ID.; ID.; ID.; ID.; ID.; WAIVER OF OBJECTION TO
COMPETENCY OF A WITNESS. If a party admits proof to be
taken in a case without an oath, after the testimony has been
acted upon by the court, and made the basis of a judgment,
such party can no longer object to the admissibility of the said
testimony. He is estopped from raising the issue in the
appellate court. This was the ruling of this Court in Republic v.
Court of Appeals, thus: Simply put, any objection to the
admissibility of evidence should be made at the time such
evidence is offered or as soon thereafter as the objection to its
admissibility becomes apparent, otherwise the objection will
be considered waived and such evidence will form part of the
records of the case as competent and admissible evidence.
The failure of petitioner to interpose a timely objection to the
presentation of Divinaflor's testimony results in the waiver of
any objection to the admissibility thereof and he is therefore
barred from raising said issue on appeal. HTDAac
10. ID.; CRIMINAL PROCEDURE; APPEAL; ISSUE OF
ADMISSIBILITY OF TESTIMONY TAKEN UNDER UNCERTAIN OATH
CANNOT BE RAISED FOR THE FIRST TIME ON APPEAL. Here,
it was only in this Court that the appellants raised the matter
for the first time, that there was failure on the part of the
prosecution to examine Angela on the nature of her oath, and
to ascertain whether she had the capacity to distinguish right
from wrong. It is too late in the day for the appellants to raise
the issue.
11. ID.; ID.; CREDIBILITY OF WITNESSES; FINDINGS OF TRIAL
COURT ON THE COMPETENCE OF CHILD WITNESS, RESPECTED.
The determination of the competence and capability of a
child as a witness rests primarily with the trial judge. The trial
court correctly found Angela a competent witness and her
testimony entitled to full probative weight. Any child
regardless of age, can be a competent witness if she can
perceive and perceiving, can make known to others, and that
she is capable of relating truthfully facts for which she is
examined. In People v. Mendiola, this Court found the six-year-
old victim competent and her testimony credible. Also
in Dulla v. Court of Appeals, this Court gave credence to the
testimony of a three-year-old victim. It has been the consistent
ruling of the Court that the findings of facts of the trial court,
its calibration of the testimonies of witnesses and its
assessment of the probative weight thereof, as well as its
conclusions anchored on said findings are accorded by the
appellate courts high respect if not conclusive effect absent
clear and convincing evidence that the trial court ignored,
misconstrued, or misinterpreted cogent facts and
circumstances which if considered warrants a reversal or
modification of the outcome of the case. In this case, the Court
finds no basis to deviate from the findings and conclusions of
the trial court on the competency of Angela, and the probative
weight of her testimony.
12. ID.; ID.; ID.; TESTIMONIES OF CHILD VICTIMS, GIVEN FULL
WEIGHT AND CREDIT. Appellants must come to grips with
case law that testimonies of child victims are given full weight
and credit. The testimony of children of sound mind is likewise
to be more correct and truthful than that of older persons.
In People vs. Alba, this Court ruled that children of sound mind
are likely to be more observant of incidents which take place
within their view than older persons, and their testimonies are
likely more correct in detail than that of older persons. Angela
was barely six-years old when she testified. Considering her
tender years, innocent and guileless, it is incredible that
Angela would testify falsely that the appellants took her from
the school through threats and detained her in the "dirty
house" for five days. In People v. Dela Cruz, this Court also
ruled that ample margin of error and understanding should be
accorded to young witnesses who, much more than adults,
would be gripped with tension due to the novelty and the
experience in testifying before the trial court.
13. ID.; ID.; ID.; MINOR INCONSISTENCIES DO NOT AFFECT THE
CREDIBILITY OF WITNESSES AND THEIR TESTIMONIES. Anent
the . . . inconsistencies adverted to by the appellants, the
same pertain only to minor and peripheral matters and not to
the principal occurrence or the elements of the crime charged,
and the positive identification of the appellants. Hence, the
credibility of Angela, and that of her testimony were not
impaired by the said inconsistencies.
14. CRIMINAL LAW; KIDNAPPING AND SERIOUS ILLEGAL
DETENTION FOR RANSOM; DEATH PENALTY; WHEN PROPER.
To warrant the imposition of the death penalty for the crime of
kidnapping and serious illegal detention for ransom, the
prosecution must prove beyond reasonable doubt: (a) intent
on the part of the accused to deprive the victim of his liberty;
(b) actual deprivation of the victim of his liberty; and (c)
motive of the accused, which is ransom for the victim or other
person for the release of the victim.
15. ID.; ID.; QUALIFYING CIRCUMSTANCES; EXTORTING
RANSOM, ELUCIDATED. The purpose of the offender in
extorting ransom is a qualifying circumstance which may be
proved by his words and overt acts before, during and after
the kidnapping and detention of the victim. Neither actual
demand for nor actual payment of ransom is necessary for the
crime to be committed. Ransom as employed in the law is so
used in its common or ordinary sense; meaning, a sum of
money or other thing of value, price, or consideration paid or
demanded for redemption of a kidnapped or detained person,
a payment that releases from captivity. It may include benefits
not necessarily pecuniary which may accrue to the kidnapper
as a condition for the release of the victim. CHcESa
16. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE;
WHEN SUFFICIENT TO PROVE QUALIFYING CIRCUMSTANCE.
Circumstantial evidence is sufficient to prove the qualifying
circumstance if (a) there is more than one circumstance; (b)
the facts from which the inferences are proven; (c) the
combination of all the circumstances is such as to produce a
conviction beyond a reasonable doubt. The circumstances
proved should constitute an unbroken chain which leads to one
fair and reasonable conclusion pointing to the accused to the
exclusion of others as the one who demanded ransom. The
circumstances proved must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and
that at the same time inconsistent with any other hypothesis
except that of guilty. The prosecution must rely on the strength
of its evidence and not on the weakness of that of the
appellants.
17. CRIMINAL LAW; KIDNAPPING FOR RANSOM; PROPER
PENALTY IS DEATH REGARDLESS OF MODIFYING
CIRCUMSTANCES. Appellant Bisda is GUILTY of kidnapping
for ransom. Being a conspirator, appellant Basilan is also guilty
of the said crime. The penalty for kidnapping for ransom is
death, a single and indivisible penalty. The aggravating
circumstance of use of a motor vehicle under Article 14,
paragraph 20 of the Revised Penal Code was attendant in the
commission of the crime. However, said circumstance, as well
as the voluntary surrender of appellant Basilan, are
inconsequential in the penalties to be imposed on the said
appellants, conformably to Article 63 of the Revised Penal
Code.
18. ID.; ID.; CIVIL PENALTIES; PROPER MORAL DAMAGES AND
EXEMPLARY DAMAGES IN CASE AT BAR. Under Article 2219,
paragraph 7, of the New Civil Code, moral damages may be
awarded to a victim of illegal arrest and detention. In this case,
the appellants poked a knife on the victim as they took her
from the school. The appellants also tied her hands, and
placed scotch tape on her mouth. The hapless victim was so
shocked when operatives of the PAOCTF barged into the office
of appellant Bisda, and took custody of the victim that she
cried profusely. The victim suffered trauma, mental, physical
and psychological ordeal. There is, thus, sufficient basis for an
award of moral damages in the amount of P300,000. Since
there were demands for ransom, not to mention the use by the
appellants of a vehicle to transport the victim from the school
to the Jollibee Restaurant and to the office of appellant Bisda,
the victim is entitled to exemplary damages in the amount of
P100,000. DIETcH

DECISION

PER CURIAM p:
Before this Court on automatic review is the Decision 1 of the
Regional Trial Court (RTC) of Marikina City; Branch 272,
convicting appellants Alma Bisda and Generosa "Jenny Rose"
Basilan, of kidnapping for ransom; sentencing each of them to
the extreme penalty of death by lethal injection, and ordering
them to indemnify the parents of the victim Angela Michelle
Soriano the amount of P100,000 as moral damages, and to
pay the costs of the suit.
The Case
In an Amended Information docketed as Criminal Case No. 98-
2647-MK, the appellants were charged with the felony of
kidnapping for ransom committed as follows:
That on or about the 3rd of September 1998, in the
City of Marikina, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and helping one
another, did there and then willfully, unlawfully,
feloniously and knowingly kidnap, detain and deprive
ANGELA MICHELLE SORIANO y SAN JUAN of her
liberty for six (6) days for the purpose of extorting
ransom from her/or her family.
Contrary to law. 2
When arraigned, the appellants, assisted by counsel, entered
separate pleas of not guilty.3
The Evidence for the Prosecution 4
William Soriano, a training consultant by profession, and his
wife Marymae Soriano, had two children: Kathleen Denise and
Angela Michelle. They rented a house at No. 5 Col. Divino St.,
Concepcion, Marikina. Their landlady who lived nearby had a
telephone with number 942-49-18. 5 During the school year
1997-1998, then five-year-old Angela was in Prep at the
Mother of Divine Providence School in Marikina Heights,
Marikina City. The couple employed Lea and Wendy Salingatog
as the yayas of their children. Angela met appellant Jenny
Rose Basilan when the latter visited her niece Wendy in the
Soriano residence. Jenny Rose was, thus, no stranger to
Angela.

About 11:00 a.m. on September 3, 1998, Angela's classes had

just ended and she was on her way to her school bus which
was parked outside the school campus near the exit gate. She
was in her school uniform and wore black shoes. Unknown to
Angela, appellants Alma and Jenny Rose were outside of the
school gate waiting for her. When they saw Angela, Alma and
Jenny Rose proceeded to the gate and showed a visitor's gate
pass to the security guard. They approached the young girl,
and told her that her parents were waiting for her at the
Jollibee Restaurant. Angela initially refused to go with the two
women, but because Alma held on to her hand so tightly and
poked a knife at her, Angela had no choice but to go with
them. They rode a tricycle and went to the Jollibee Restaurant
where Jenny Rose ordered spaghetti for Angela. When Angela
did not see her parents, she wondered why she went with
Jenny Rose and Alma in the first place. With Angela in tow,
Alma and Jenny Rose boarded a white taxi and went to a "dirty
house" where they changed Angela's clothes. The girl was
made to wear blouse and shorts, yellow t-shirt and a pair of
panties. 6 Alma and Jenny Rose took her earrings. They fed
her with the spaghetti they earlier bought at the restaurant.
Alma then left, leaving Angela and Jenny Rose in the house.
Jenny Rose sent Angela to sleep, and after a while, Alma
returned. When Angela woke up, Alma and Jenny Rose served
her merienda and allowed her to watch television. Henceforth,
Angela was kept in the house. At one time, Alma and Jenny
Rose tied up Angela's hands and feet, and placed scotch tape
on her mouth. Angela was sometimes left alone in the house
but the door was kept locked. To pass the time, Angela
watched television and made drawings. Jenny Rose and Alma
did not fail to feed and bathe Angela. Angela did not call her
parents through the telephone number of their landlady.
In the meantime, when William arrived home shortly before
noon on that day, Lea and Wendy told him that Angela had not
yet arrived home from school. He rushed to the school to fetch
Angela, but was informed by the school security guard that his
daughter had already been picked up by two women, one of
whom was registered in the visitor's slip as Aileen Corpuz.
Because he did not know anyone by that name, William
immediately proceeded to the registrar's office to verify the
information, only to find out that "Aileen Corpuz" had earlier
inquired at the said office about the possibility of transferring
Angela to another school. The school staff panicked when
William demanded to know how unknown persons were able to
get his daughter. He then started calling his friends and
relatives to help him locate Angela. He also sought the help of
Rizza Hontiveros, a TV personality who promised to relay his
plea to the Presidential Anti-Organized Crime Task Force
(PAOCTF). The school staff also reported the incident to the
Marikina Police Force which dispatched a team of investigators
to the Soriano residence.7
When apprised of the incident, the PAOCTF organized a team
headed by then Chief Inspector Ricardo Dandan with SPO4 Tito
Tuanggang, SPO1 Charles Larroza and civilian agent George
Torrente, as members, to conduct surveillance operations and
to recover the victim and arrest the culprits. The team
proceeded to the Soriano residence and to Angela's school to
conduct an initial investigation.
At about 6:00 a.m. on September 4, 1998, William's landlady
went to his apartment to tell him that a lady had called up
earlier and left a message for him: "Pakisabi na lang kay Mr.
Soriano na kakausapin ko siya bukas ng umaga." When the
landlady asked who the caller was, the voice replied, "Hindi na
importante iyon." 8 William thereafter convinced his landlady
to have her telephone set transferred to his residence to
facilitate communication with his daughter's abductors. 9
Shortly before midnight that same day, George arrived at the
Soriano residence and asked William if the kidnapper had
already made contact. William responded that a woman had
earlier called, through his landlady. George then instructed
William to prolong the conversation should the kidnapper call
again, to enable the agents to establish the possible location
of the caller. 10
On September 5, 1998 at around 9:25 p.m., William received a
call from an unidentified woman who told him, "Kung gusto mo
pang makita yong anak mo, maghanda ka ng five million
pesos." He replied, "Saan naman ako kukuha ng five
million? Alam mo naman na nakatira lang ako
sa apartment." The caller said, "Hindi ko masasagot yan.
Tatanungin ko na lang sa aking mga boss." William informed
George of his conversation with the caller. George relayed the
information by means of a hand-held radio to the other
PAOCTF operatives standing by. 11
On September 7, 1998, at about 11:25 a.m., Marymae
received a telephone call from a woman demanding for
ransom money. The caller called two more times, at 7:00 p.m.
and at 9:26 p.m. Marymae pleaded with the caller to reduce
the ransom money to P25,000, or if that was not possible, to
an amount not exceeding P50,000. The caller said, "Hindi ko
masasagot iyan. Dadalhin na lang namin ang bata sa boss
namin." Marymae relayed the conversation to William, their
other daughter Kathleen and to George. 12
At about noon that day, PAOCTF Chief of Operations
Superintendent Michael Ray Aquino received a call from an
anonymous source informing him that a woman who had
talked about a ransom and had acted in a suspicious manner
was spotted at the MSC Freight Service office located at No.
1303 Paz Street, Paco, Manila. Acting on the information,
Ricardo, Charles, Tito and other PAOCTF operatives swooped
down on the place and saw a woman, who turned out to be
Alma Bisda, emerging from a small house at No. 1258 Paz
Street, some fifty meters or so away from the said office. She
had just bought food from an adjacent store at No. 1246 Paz
Street, Paco, Manila. Surveillance operations were thereafter
conducted.
At about 3:40 p.m. on September 8, 1998, George and Charles
were at the Soriano residence. Ricardo and Tito were in the
periphery of Alma's house, monitoring her whereabouts and
movements. Alma again left her house and after locking the
door, went to the small store nearby. She lifted the telephone
and called someone. The telephone in the Soriano residence
rang. When William lifted the receiver, he heard a voice similar
to that of the woman who had called him the first time. The
caller was asking where the money was. William told her that
the P25,000 was ready, to which she replied, "Hindi ko
masasagot iyan, dadalhin na lang namin ang bata sa aking
boss." William told the caller that he was willing to give
P50,000 but pleaded that he be given ample time to produce
the money. The woman reiterated: "Hindi ko masasagot
iyan." 13
Ricardo and Tito heard the sound of a car horn blowing while
Alma was using the telephone. Tito called up Charles and
inquired whether he (Charles) heard the same sound while
William was talking to the caller. After William hung up the
telephone, he told George that he could hear the horn of a car
blowing in the background. George then called up Ricardo by
phone and relayed the information. When George inquired if
Ricardo heard the sound of the horn of a car while Alma was
talking over the telephone, Ricardo replied in the affirmative.
The PAOCTF operatives concluded that Alma was the
kidnapper.
After making the call, Alma hung up the telephone and
returned to her house. The PAOCTF operatives followed. When
Alma unlocked the door to the house, the operatives accosted
her. She tried to escape, to no avail. Tito heard the cry of a
child coming from inside the house, pleading for help: "Tita
ilabas mo ako!" 14 He rushed to the house and saw the victim
Angela. He then carried her outside to safety. The agents
searched the house for evidence and found a pair of black
shoes, a pair of panties, a yellow shirt, a set of blouse and
shorts with red, yellow and white stripes. The evidence was
placed in a plastic bag. 15 The victim and the suspects were
thereafter brought to the PAOCTF office for proper
documentation.
When informed that his daughter had already been rescued,
William rushed to the PAOCTF headquarters where he and
Angela were reunited. Angela identified Alma as her kidnapper.
When William asked Alma why she kidnapped Angela and what
she would do with the one-million-peso ransom she was
demanding, she replied: "Kuya, wag kang maghusga, pareho
lang tayong biktima." When William asked Alma: "Biktima,
saan?"Alma replied: "Ang anak ko, kinidnap din nila." 16
Chief Inspector Dandan turned over to Evidence Custodian
PO2 Joseph Bagsao, the pieces of evidence contained in a blue
Shoe Mart (SM) plastic bag which the operatives found in
Alma's house: a pair of black shoes, a pair of panties, a yellow
shirt, a set of white blouse and shorts with red, yellow and
white stripes, all of which were sized to fit a child of 4 to 7
years of age. 17
On October 19, 1998, an information for kidnapping for
ransom was filed against Alma and Jane Doe.
On October 26, 1998, at around 11:00 a.m., Jenny Rose arrived
at the PAOCTF Headquarters in Camp Crame, and proceeded
to PO2 Joseph Bagsao's office where she announced that she
was one of Alma's cohorts. PO2 Bagsao took Jenny Rose's
fingerprints and entered the data in a fingerprint index
card. 18 Jenny Rose was thereafter placed in a police line-up.
Angela, who arrived at the PAOCTF office with her father,
identified Jenny Rose as one of her kidnappers. Police Chief
Inspector Atty. Aurelio C. Trampe, Jr., the Legal and
Investigation Division Chief of the PAOCTF, later referred Jenny
Rose to the Office of the City Prosecutor of Marikina City, for
preliminary investigation. 19
The prosecutor later amended the Information by deleting the
name Jane Doe and substituting the name Jenny Rose Basilan
y Payan as the second accused.

Alma's Evidence
Alma denied having kidnapped Angela for ransom. She
testified that she was married, and a resident of Block 38, Lot
38, G. Maliputo Street, Phase II, Area 4, Kaunlaran Village,
Navotas, Metro Manila. She was a businesswoman who ran a
local employment agency for household help. She was also
engaged in the business of buying and selling palaygrains. Her
local employment agency was located in Navotas. She had
another office at No. 1258 Paz Street, Paco, Manila, which
served as a bodega for items she sent to the province, as well
as items she purchased. She had an adopted daughter named
Mary Rose, who, in September 1998, studied at Harris School
in Antipolo. She had employed Wendy Salingatog for a time as
the yaya of her adopted daughter. Alma was then residing in V.
Luna Street, Quezon City.
Alma employed Jenny Rose as secretary in her employment
agency. In payment for services rendered, Jenny Rose was sent
to school at the Lyceum of the Philippines to study B.S.
Business Administration. She was also given an allowance.
In September 1998, Alma was looking for a school run by nuns
that would be willing to accept her adopted daughter in the
middle of the school year. Jenny Rose suggested the Divine
Providence School in Marikina City. In the morning of
September 3, 1998, Jenny Rose brought her to the said school.
They proceeded to the administration office where Alma
inquired if the school would allow her adopted daughter to
enroll. When Jenny Rose and Alma were about to leave, a little
girl, who turned out to be Angela, approached them and asked
what Jenny Rose was doing in her school. Jenny Rose
introduced Angela to Alma as her niece, and informed Alma
that she would be bringing Angela with her to her boarding
house in Espaa Street.
At that point, Alma asked Jenny Rose and Angela if they
wanted to eat. When they agreed, the three of them
proceeded to the Jollibee Restaurant near the Meralco office in
Marikina City. After eating, Alma bade them goodbye and was
about to leave for her office when Jenny Rose asked if she and
Angela could come along with her to Cubao. She acceded to
the request, and they rode a Tamaraw FX taxi. Because Angela
was getting sleepy, Alma offered to bring them to Jenny's
boarding house in Espaa, and dropped them off there. Alma
thereafter proceeded to her office at 1258 Paz St., Paco,
Manila, where she had been holding office since January 1997,
and arrived thereat at about 2:00 p.m.
At or about 8:00 p.m. of the same day, Alma passed by Jenny
Rose's boarding house to give her instructions on what to do
the following day. She saw Angela crying profusely. She told
Jenny Rose to bring Angela home, but Jenny Rose told her that
Angela's parents would be coming to fetch her. Thinking that
Angela was probably bored, Alma suggested that they stay in
her office in Paco so that they could watch television while
waiting for Angela's parents. Jenny Rose agreed. They arrived
at the said office at around 8:40 p.m. Alma left at around
10:00 p.m. and went home to her rented house in Palmera
Homes, Antipolo, where she stayed until September 6, 1998.
On September 7, 1998, at around 12:00 noon, Alma arrived at
her office in Paco, Manila, and found that Jenny Rose and
Angela were still there. Jenny Rose assured Alma that Angela
would be fetched by her parents. At around 4:00 p.m., Alma
instructed Jenny Rose to go to the province to collect some
debts. Jenny Rose left for the province on the same day. Alma
stayed in the office because she was having her menstrual
period at the time and was not feeling well. She took care of
Angela while Jenny Rose was away.
The next day, September 8, 1998, Alma was still in her office
with Angela. At about 3:00 p.m., while she was watching
television with Angela, someone knocked at the door. When
she opened it, two male persons entered. One of them was
Inspector Ricardo Dandan who showed her a photograph of
Angela and asked if she knew the child. Alma answered in the
affirmative. Ricardo then asked her, "Don't you know that this
is kidnapping?" to which Alma replied, "I do not know." She
also told Dandan that she did not know what was happening to
her. Suddenly, Alma was handcuffed. Angela cried and asked
Alma: "What are they doing to you, Tita?" She was brought to
Camp Crame where she was interrogated and detained. Alma
did not make any telephone calls that day. William, Marymae
and Angela arrived at Alma's detention cell. When Angela saw
her, the girl tried to run to Alma but William held on to his
daughter. William asked Alma why she took Angela, Alma
replied that it was Jenny Rose who brought the girl along with
them. She told William that they were both victims.
Sometime on October 26, 1998, Jenny Rose visited Alma to ask
for forgiveness and to assume full responsibility for the
incident. Jenny Rose also informed her that she wanted to ask
forgiveness from the Sorianos so that she could finish her
schooling. It was only then that she realized what Jenny Rose
had done to her. Nevertheless, she still believed that Jenny
Rose was a good person. She advised her to go home and
continue with her studies.
When Angela's sworn statement was shown to her, Alma
noticed that Angela did not mention Jenny Rose as one of the
two persons who had kidnapped her. Alma executed a
handwritten statement denying the truth of the contents of
Angela's affidavit. 20
Jenny Rose's Evidence
Jenny Rose did not testify in her defense. She presented Atty.
Aurelio Trampe, Jr. as her witness who testified 21 that he was
the Legal and Investigation Division Chief of the PAOCTF. On
October 26, 1998, he interviewed Jenny Rose when the latter
surrendered to the task force. Jenny Rose insisted that she
wanted to help Alma and get all the blame for the kidnapping.
She wanted to admit her participation in the crime, and
volunteered the information that she and Alma kidnapped
Angela. Atty. Trampe, Jr. wrote a letter 22 to the Department of
Justice requesting for her inclusion in the ongoing preliminary
investigation. He believed that it would be more appropriate
for the prosecutor handling the case to investigate and
determine whether Jenny Rose was the Jane Doe referred to in
the complaint. Atty. Trampe, Jr. admitted, however, that aside
from the voluntary surrender of Jenny Rose, he did not have
any other evidence to include her as one of the suspects in the
case. Further, he did not provide a lawyer for Jenny Rose
because he did not intend to conduct an exhaustive
interrogation, and he knew that even if she admitted her
participation, the statement would not be admitted as
evidence. 23
Jenny Rose adduced in evidence the letter of Atty. Trampe, Jr.
to prove that she voluntarily surrendered and that there was
lack of evidence against her.
On September 16, 1999, the trial court rendered judgment, the
decretal portion of which reads:
WHEREFORE, foregoing premises considered, the
accused ALMA BISDA y GAUPO and GENEROSA
BASILAN y PAYAN are hereby found GUILTY beyond
reasonable doubt of the crime of Kidnapping for
Ransom penalized under Article 267 of the Revised
Penal Code, as amended by RA 7659 and is
sentenced to suffer the extreme penalty of DOUBLE
DEATH by lethal injection, the two accused having
conspired in the commission thereof. They are further
ordered to pay solidarily the parents of the victim the
amount of P100,000.00 as moral damages and costs
of the suit.
SO ORDERED. 24
The assigned errors ascribed by the appellants to the trial
court may be synthesized, thus: (a) the trial court erred in
convicting the appellants of kidnapping; (b) the trial court
erred in sentencing the appellants to double death. 25 The
Court will delve into and resolve the issues simultaneously.
The prosecution adduced proof
beyond reasonable doubt that the
appellants kidnapped the victim.
The appellants aver that the prosecution failed to muster proof
beyond reasonable doubt that they kidnapped and illegally
detained Angela. Angela in fact voluntarily went with them,
and she was free to roam around the house, and to call her
parents through the telephone of their landlady which Angela
knew by heart.
There is no proof beyond reasonable doubt that the appellants
conspired to kidnap Angela. Appellant Bisda avers that she is
guilty only of slight illegal detention under Article 268 of the
Revised Penal Code because (a) Angela stayed in her office for
only three days; and (b) the circumstance of a female offender
and a female offended party is not one of those included in the
definition of kidnapping or serious illegal detention under
Article 267 of the RPC.
The trial court's reliance on Angela's testimony is misplaced
because the records do not show that Angela had the capacity
to distinguish right from wrong when she testified in open
court. The appellants point out that she was merely six years
old at the time. Although Angela took an oath before she
testified, the trial judge failed to ask any questions to
determine whether or not she could distinguish right from
wrong, and comprehend the obligation of telling the truth
before the court. Hence, one of the standards in determining
the credibility of a child witness was not followed. There is,
thus, a veritable doubt that Angela told the truth when she
testified.
Moreover, Angela's testimony is, besides being inconsistent on
material points, contrary to ordinary human experience.
Angela did not shout or cry when she was forced to leave the
school premises and brought to the Jollibee Restaurant. Angela
could have easily sought help from the security guard at the
exit gate of the school and from the customers in the
restaurant, or even from the tricycle and taxi drivers; but
Angela did not. Angela even admitted that she voluntarily
went with the appellants. She did not cry while detained in the
office of appellant Bisda, and even admitted that it was only
that time when she was rescued that she cried. The conduct of
Angela, the appellants insist, is contrary to ordinary human
experience, knowledge and observation. By her own admission
in her sworn statement 26 to the PAOCTF agents, Angela was
assisted by her parents while she was giving the said
statement. This raised doubts as to the veracity of her
testimony.

The contentions of the appellants are bereft of merit.

Article 267 of the Revised Penal Code as amended by Republic
Act No. 7659 reads:
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 RA No. 7659). 27
For the accused to be convicted of kidnapping or serious illegal
detention, the prosecution is burdened to prove beyond
reasonable doubt all the elements of the crime, namely, (1)
the offender is a private individual; (2) he kidnaps or detains
another, or in any manner deprives the latter of his liberty; (3)
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) the kidnapping or detention lasts
for more than three days; (b) it is committed by simulating
public authority; (c) any serious physical injuries are inflicted
upon the person kidnapped or detained or threats to kill him
are made; or (d) the person kidnapped or detained is a minor,
female, or a public officer. 28 If the victim of kidnapping and
serious illegal detention is a minor, the duration of his
detention is immaterial. Likewise, if the victim is kidnapped
and illegally detained for the purpose of extorting ransom, the
duration of his detention is immaterial. 29 The word "female"
in paragraph 1(4) of Article 267 of the Revised Penal Code
refers to the gender of the victim and not of the offender.
The essence of the crime of kidnapping is the actual
deprivation of the victim's liberty under any of the above-
mentioned circumstances, coupled with indubitable proof of
intent of the accused to effect the same. 30 There must be a
purposeful or knowing action by the accused to forcibly
restrain the victim because taking coupled with intent
completes the offense. 31 Kidnapping which involves the
detention of another is by its nature a continuing crime. 32
The victim's lack of consent is also a fundamental element of
kidnapping. The involuntariness of the seizure and detention is
the very essence of the crime. 33 The general rule is that the
prosecution is burdened to prove lack of consent on the part of
the victim. However, where the victim is a minor especially if
she is only five years old, lack of consent is presumed. She is
incompetent to assent to seizure and illegal detention. 34 In
this case, Angela was merely five years old when she was
kidnapped; thus incapable of giving consent. The consent of
such child could place the appellants in no better position than
if the act had been done against her will. The appellants
cannot rely on Angela's initial willingness to go along with
them to the restaurant. As Judge Shepherd stated in State v.
Chisenhall: 35
It is clear that the consent of the child, obtained by
means of persuasion, is no defense, since the result
of such persuasion is just as great an evil as if it had
been accomplished by other means.
A kidnapper should not be rewarded with an acquittal simply
because she is ingenious enough to conceal her true motive
from her victim until she is able to transport the latter to
another place.
Although Angela was free to roam around in the "dirty house,"
to draw and to watch television during the entire period of her
detention, and was regularly fed and bathed, the appellants
are nevertheless guilty of kidnapping and illegally detaining
the five-year-old child. As Judge McGill of the United States
Court of Appeals said in United States v. McCabe, 36 "to
accept a child's desire for food, comfort as the type of will or
consent contemplated in the context of kidnapping would
render the concept meaningless."
In People v. Baldogo, 37 this Court held that illegal serious
detention under Article 267 of the Revised Penal Code as
amended, includes not only the imprisonment of a person but
also the deprivation of her liberty in whatever form and for
whatever length of time. It includes a situation where the
victim cannot go out of the place of confinement or detention
or is restricted or impeded in his liberty to move. 38 In this
case, the door to the office of appellant Bisda was locked while
Angela was detained therein. Even if she wanted to escape
and go home, Angela, at her age, could not do so all by
herself. During the period of her confinement, Angela was
under the control of the appellants. The helpless child was
waiting and hoping that she would be brought home, or that
her parents would come and fetch her.
The prosecution adduced proof beyond reasonable doubt that
the appellants conspired to kidnap and illegally detain Angela.
The appellants' testimonies even buttressed the testimonies of
both the victim and the other witnesses for the prosecution.
Article 8 of the Revised Penal Code provides that there is
conspiracy when two or more persons agree to commit a
felony and decide to commit it. 39 In People v.
Pagalasan, 40this Court held that conspiracy need not be
proven by direct evidence. It may be inferred from the conduct
of the accused before, during and after the commission of the
crime, showing that they had acted with a common purpose
and design. 41 Conspiracy may be implied if it is proved that
two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a
part so that their combined acts, though apparently
independent of each other were, in fact, connected and
cooperative, indicating a closeness of personal association and
a concurrence of sentiment. Conspiracy once found, continues
until the object of it has been accomplished unless abandoned
or broken up. 42 To hold an accused guilty as a co-principal by
reason of conspiracy, he must be shown to have performed an
overt act in pursuance or furtherance of the
complicity. 43 There must be intentional participation in the
transaction with a view to the furtherance of the common
design and purpose. 44
Each conspirator is responsible for everything done by his
confederates which follows incidentally in the execution of a
common design as one of its probable and natural
consequences even though it was not intended as part of the
original design. 45Responsibility of a conspirator is not
confined to the accomplishment of a particular purpose of
conspiracy but extends to collateral acts and offenses incident
to and growing out of the purpose intended. 46 Conspirators
are held to have intended the consequences of their acts and
by purposely engaging in conspiracy which necessarily and
directly produces a prohibited result, they are, in
contemplation of law, chargeable with intending that
result. 47 Conspirators are necessarily liable for the acts of
another conspirator unless such act differs radically and
substantively from that which they intended to commit. 48 As
Judge Learned Hand put it in United States v.
Andolscheck, 49 "when a conspirator embarks upon a criminal
venture of indefinite outline, he takes his chances as to its
content and membership, so be it that they fall within the
common purposes as he understands them."
The appellants inveigled Angela into going with them by telling
her that her parents were waiting for her at the Jollibee
Restaurant. Appellant Bisda poked a knife at Angela and held
her hands so tightly that the helpless child had no recourse
but to come along. The appellants transported Angela on
board a taxi and brought her to Cubao, and then to
appellant Bisda's office at No. 1258 Paz St., Paco, Manila. The
appellants tied her hands, covered her mouth with scotch
tape, and detained her from September 3, 1998 until
September 8, 1998, when she was providentially rescued by
the operatives of the PAOCTF.
The collective, concerted and synchronized acts of the
appellants before, during and after the kidnapping and the
illegal detention of Angela constitute indubitable proof that the
appellants conspired with each other to attain a common
objective, i.e., to kidnap Angela and detain her illegally. The
appellants are thus principals by direct participation in the
kidnapping of Angela and illegally detaining her.
Appellant Basilan cannot escape conviction for the crime
charged on her barefaced claim that she merely accompanied
appellant Bisda to the latter's office with the victim in tow. The
records show that the appellant presented as her sole witness
Atty. Aurelio Trampe, Jr., then PAOCTF Legal and Investigation
Division Chief, who testified that when she surrendered to him,
the appellant admitted that she and appellant Bisda had
kidnapped Angela:
ATTY. SALAMERA:
This court would like to be cleared (sic). Did she
admit to you the condition of the alleged
kidnapping on September 3, 1998?
WITNESS:
She volunteered that statement that she was
together with Ms. Alma Besda (sic) kidnap (sic)
Angela Michelle Soriano. 50
The appellants' contention that the prosecution failed to
establish that Angela understood the nature of an oath and the
need for her to tell the truth must fail.

Section 1, Rule 132 of the Revised Rules of evidence provides

that the examination of witnesses shall be under oath or
affirmation: 51
SECTION 1. Examination to be done in open court.
The examination of witnesses presented in a trial or
hearing shall be done in open court, and under oath
or affirmation. Unless the witness is incapacitated to
speak, or the question calls for a different mode of
answer, the answers of the witness shall be given
orally. (1a). 52
An oath is defined as an outward pledge, given by the person
taking it that his attestation or promise is made under an
immediate sense of his responsibility to God. 53 The object of
the rule is to affect the conscience of the witness and thus
compel him to speak the truth, and also to lay him open to
punishment for perjury in case he willfully falsifies. 54 A
witness must be sensible to the obligation of an oath before he
can be permitted to testify. 55 It is not, however, essential that
he knows how he will be punished if he testify
falsely. 56 Under modern statutes, a person is not disqualified
as a witness simply because he is unable to tell the nature of
the oath administered to a witness. 57 In order that one may
be competent as a witness, it is not necessary that he has a
definite knowledge of the difference between his duty to tell
the truth after being sworn and before, or that he be able to
state it, but it is necessary that he be conscious that there is a
difference. 58 It cannot be argued that simply because a child
witness is not examined on the nature of the oath and the
need for her to tell the whole truth, the competency of the
witness and the truth of her testimony are impaired. If a party
against whom a witness is presented believes that the witness
is incompetent or is not aware of his obligation and
responsibility to tell the truth and the consequence of him
testifying falsely, such party may pray for leave to conduct
a voire dire examination on such witness to test his
competency. 59 The court may motu proprio conduct the voir
direexamination. In United States v. Buncad, 60 this Court held
that when a child of tender age is presented as a witness, it is
the duty of the judge to examine the child to determine his
competency. In Republic v. Court of Appeals, 61 this Court held
that:
[W]hen a witness is produced, it is a right and
privilege accorded to the adverse party to object to
his examination on the ground of incompetency to
testify. If a party knows before trial that a witness is
incompetent, objection must be made before trial
that a witness is incompetent, objection must be
made before he has given any testimony; if the
incompetency appears on the trial, it must be
interposed as soon as it becomes apparent. 62
The competency of a person to take the prescribed oath is a
question for the trial court to decide. 63
If a party admits proof to be taken in a case without an oath,
after the testimony has been acted upon by the court, and
made the basis of a judgment, such party can no longer object
to the admissibility of the said testimony. 64 He is estopped
from raising the issue in the appellate court. This was the
ruling of this Court in Republic v. Court of Appeals, 65 thus:
Simply put, any objection to the admissibility of
evidence should be made at the time such evidence
is offered or as soon thereafter as the objection to its
admissibility becomes apparent, otherwise the
objection will be considered waived and such
evidence will form part of the records of the case as
competent and admissible evidence. The failure of
petitioner to interpose a timely objection to the
presentation of Divinaflor's testimony results in the
waiver of any objection to the admissibility thereof
and he is therefore barred from raising said issue on
appeal.
In this case, Angela was six years old when she
testified. 66 She took an oath to "tell the truth, the whole truth
and nothing but the truth" before she testified on direct
examination. There was nary a whimper of protest or objection
on the part of the appellants to Angela's competence as a
witness and the prosecution's failure to propound questions to
determine whether Angela understood her obligation and
responsibility of telling the truth respecting the matter of her
testimony before the court. The appellants did not even bother
requesting the trial court for leave to conduct a voir
dire examination of Angela. After the prosecution terminated
its direct examination, the appellants thereafter cross-
examined Angela extensively and intensively on the matter of
her testimony on direct examination. It was only in this Court
that the appellants raised the matter for the first time, that
there was failure on the part of the prosecution to examine
Angela on the nature of her oath, and to ascertain whether she
had the capacity to distinguish right from wrong. It is too late
in the day for the appellants to raise the issue.
The determination of the competence and capability of a child
as a witness rests primarily with the trial judge. 67 The trial
court correctly found Angela a competent witness and her
testimony entitled to full probative weight. Any child
regardless of age, can be a competent witness if she can
perceive and perceiving, can make known to others, and that
she is capable of relating truthfully facts for which she is
examined. 68 InPeople v. Mendiola, 69 this Court found the
six-year-old victim competent and her testimony credible. Also
in Dulla v. Court of Appeals, 70 this Court gave credence to
the testimony of a three-year-old victim. It has been the
consistent ruling of the Court that the findings of facts of the
trial court, its calibration of the testimonies of witnesses and
its assessment of the probative weight thereof, as well as its
conclusions anchored on said findings are accorded by the
appellate courts high respect if not conclusive effect absent
clear and convincing evidence that the trial court ignored,
misconstrued, or misinterpreted cogent facts and
circumstances which if considered warrants a reversal or
modification of the outcome of the case. 71 In this case the
Court finds no basis to deviate from the findings and
conclusions of the trial court on the competency of Angela,
and the probative weight of her testimony.
Appellants must come to grips with case law that testimonies
of child victims are given full weight and credit. The testimony
of children of sound mind is likewise to be more correct and
truthful than that of older persons. 72 In People vs.
Alba, 73 this Court ruled that children of sound mind are likely
to be more observant of incidents which take place within their
view than older persons, and their testimonies are likely more
correct in detail than that of older persons. Angela was barely
six years old when she testified. Considering her tender years,
innocent and guileless, it is incredible that Angela would testify
falsely that the appellants took her from the school through
threats and detained her in the "dirty house" for five days.
In People v. Dela Cruz, 74 this Court also ruled that ample
margin of error and understanding should be accorded to
young witnesses who, much more than adults, would be
gripped with tension due to the novelty and the experience in
testifying before the trial court.
The credibility of Angela and the verisimilitude of her
testimony is not impaired by her failure to shout for help when
the appellants took her, or to make any attempt to call her
parents or to escape from her captors and to use the
telephone to call her parents. At five years old, she could not
be expected to act and react to her kidnapping and detention
like an adult should. She did not shout and seek help from the
school security guards because the appellants told Angela that
her parents were waiting for her. Appellant Basilan was the
niece of Angela's yaya. She then believed that nothing was
amiss. It was only when she failed to see her parents that
Angela blamed herself for going with the appellants in the first
place.
Atty. Laracas:
Now, they told you that your parents were at
Jollibee. When you did not see your parents,
what did you do?
Witness:
I told myself, why did I go with them.
Atty. Laracas:
So you just told that to yourself?
Witness:
Yes, ma'am.
Atty. Laracas:
 So initially, Angela, you are not blaming yourself
when you went with Jenny Rose?
Witness:
Yes, ma'am. 75
The evidence on record shows that appellant Bisda poked a
knife at Angela and her hands were held tightly by the
appellants as they proceeded to the restaurant from the
school. Although the Soriano spouses were by Angela's side
when the latter gave her sworn statement 76 in the PAOCTF
office, there is no showing on record that the spouses ever
influenced their daughter to prevaricate. Significantly, the
appellants' counsel did not even cross-examine Angela on her
sworn statement.
In this case, appellant Bisda asserts that Angela's testimony
contains four inconsistencies on material points; hence, is
incredible. First, Angela testified on cross-examination that the
appellants approached her but she did not talk to them. 77 In
contrast, Angela testified on cross-examination that she saw
appellant Basilan, and talked to her. 78Second, Angela
testified on direct examination that she first came to know the
identities of the kidnappers when she was brought to the "dirty
house." 79 Angela contradicted herself when she testified on
cross-examination that when she was brought to the said
house, she already knew appellant Basilan. 80 Third, Angela
testified on direct examination that she went with the
appellants to the Jollibee Restaurant when they held her hands
firmly. 81 On cross-examination, Angela testified that the
appellants threatened her when they kidnapped her by
pointing a knife at her which made her cry. 82 Angela further
contradicted herself when she testified on direct examination
that the appellants pointed a knife at her "one
night." 83 Fourth, Angela said that when she was in the office
of appellant Bisda in Paco, Manila, her feet were tied and her
mouth was covered with scotch tape. 84 However, on cross-
examination, Angela revealed that she was free to roam
around and even watched television and made drawings. 85

Anent the first and second set of inconsistencies adverted to

by the appellants, the same pertain only to minor and
peripheral matters and not to the principal occurrence or the
elements of the crime charged, and the positive identification
of the appellants. Hence, the credibility of Angela, and that of
her testimony were not impaired by the said
inconsistencies. 86 The inscrutable fact is that the appellants
took the victim from the school and detained her at the office
of appellant Bisda at No. 1258 Paz St., Paco, Manila, until she
was rescued. Whether or not Angela talked with the appellants
as she was being brought to the restaurant or that she came
to know of the identities of the kidnappers before or when she
was brought to the dirty house, are inconsequential. The
overwhelming evidence on record is that no other than the
appellants kidnapped her from her school and illegally
detained her from September 3 to 8, 1998. Indeed, when
asked to point and identify her kidnappers, Angela did so
spontaneously and positively. 87
Pros. Junio:
If you see. . . this Alma Besda (sic), if you will be
able to see her again, if you see her again, will
you be able to recognize her?
Witness:
Yes, ma'am.
Pros. Junio:
Will you point to her.
(The witness is pointing to a lady, seated at the
second from the left at the corner at the last
seat.)
 Court:
Identify yourself.
(The person pointed to, stood up and identified
herself as Alma Besda [sic]).
Pros. Junio:
What about Jenny Rose, will you be able to recognize
her?
Witness:
Yes, ma'am.
Pros. Junio:
You point to her Angel.
(The witness is pointing to the first lady seated on
the left side)
Court:
Stand up and identify yourself.
The lady stood up and identified herself as Jenny
Rose Basilan. 88
Appellant Basilan did not controvert the evidence of the
prosecution that she was the niece of the yaya of the victim,
and that the said appellant, at one time, went to the Soriano
residence where Angela saw and met her. The victim was,
thus, acquainted with appellant Basilan even before the
kidnapping.
Angela testified on direct examination, thus:
Atty. Junio:
So when Alma and Jenny Rose told you that Mommy
and Daddy were at Jollibee, what did you do?
Witness:
 I did not want to go with them but they held me
firm.
Pros. Junio:
What part of the body did they hold firmly?
Witness:
My hands.
Pros. Junio:
After Alma and Jenny Rose held your hand firmly,
what did, where did you go?
Witness:
To Jollibee. 89
Angela was not asked by the public prosecutor whether or not
the appellants threatened her with any weapon before
proceeding to the Jollibee Restaurant. The additional fact was
revealed by Angela, ironically, on cross-examination:
Atty. Salamera:
Now, were you threatened on September 3 at
around eleven in the morning when both
accused allegedly abducted you?
Witness:
Yes, sir.
Atty. Salamera:
There are two accused, who threatened you?
Witness:
They pointed knife against me.
Atty. Salamera:
Who pointed the knife upon your person?
Witness:
 Alma, sir.
Atty. Salamera:
Did you cry?
Witness:
Yes, sir.
Atty. Salamera:
Did you also cry inside the Jollibee?
Witness:
No, sir.
Atty. Salamera:
Was Alma still holding a knife at the Jollibee?
Witness:
No, sir. 90
The prosecutor tried on re-direct to take advantage of Angela's
revelation but the appellants' counsel, realizing that he had
just committed a faux pas, objected to the questions of the
public prosecutor. It turned out that the latter was himself
confused because instead of adverting to a knife, as testified
to by Angela, he blurted that appellant Bisda used a gun in
intimidating the victim. Even Angela must have been
bewildered by the repartees of the prosecution and the
appellants' counsel such that, instead of answering "one time,"
to the questions of the prosecutor, she said "one night."
Redirect:
Pros. Junio:
Angel, how many times did Alma and Jenny Rose
point a knife at you?
Atty. Salamera:
 Objection. Improper at this point in time. First it was
not covered.
Pros. Junio:
How many times did Alma point a gun?
Atty. Salamera:
Knife, your Honor.
Pros. Junio:
It was covered on cross.
Court:
Objection denied. Overruled. Witness may answer.
Witness:
One night. 91
There was, thus, no inconsistency in Angela's testimony on
this point.
Angela's hands were tied, and her mouth was covered with
scotch tape the day after she was brought to the dirty house.
Angela testified on direct examination, thus:
Pros. Junio:
Okay, where did you go?
Witness:
To the dirty house.
Pros. Junio:
Who was with you or who were with you at that
time?
Witness:
Alma Besda (sic) and Jenny Rose, ma'am.
Pros. Junio:
Where is this dirty house located?
Witness:
I do not know, ma'am.
Pros. Junio:
Upon arriving at that dirty house, what did you do?
Witness:
They changed my clothes once.
Pros. Junio:
Do you remember the color of the dress?
Witness:
No, ma'am.
Pros. Junio:
After they changed your dress or your clothes, what
happened next? What did they do to you?
Witness:
They fed me, ma'am.
Pros. Junio:
After they fed you, what did you do?
Witness:
They send (sic) me to sleep.
Pros. Junio:
When you woke up, what did they do to you?
Witness:
They fed me (pinamiryenda) (sic)
Pros. Junio:
After you ate your "miryenda" (sic) what else did
they do to you?
Witness:
 They allowed me to watch tv, ma'am.
Pros. Junio:
What about your hands, your mouth, what did they
do?
Witness:
They tied my hands.
Pros. Junio;
And your mouth?
Witness:
It was sealed with scotch tape.
Pros. Junio:
And your feet?
Witness:
They were also tied, ma'am.
Pros. Junio:
Who tied your hands?
Witness:
The two of them, ma'am.
Pros. Junio:
Will you mention their names again?
Witness:
Alma Besda (sic) and Jenny Rose. 92
On cross-examination, Angela testified that on the day she
was rescued, she could watch the television, make drawings
and roam around the room:
Atty. Larracas:
You did . . . At that time you were allegedly rescued,
Jenny Rose was not at the place where you were
rescued?
Witness:
She was not there, ma'am.
Atty. Larracas:
All along you were watching tv (sic) at the place
where you were taken?
Witness:
Only once, ma'am.
Atty. Larracas:
And when you were not watching tv (sic), what were
you doing Angela in that dirty house?
Witness:
I was drawing, ma'am.
Atty. Larracas:
So you watched tv once and the rest of the time you
were drawing?
Witness:
Yes, ma'am.
Atty. Larracas:
Of course, you cannot draw if your hands were tied,
Angela?
Witness:
Yes, ma'm.
Atty. Larracas:
So your hands were not tied?
Witness:
 No, ma'am.
Atty. Larracas:
You can move along freely at that time?
Witness:
Yes, ma'am.
Atty. Larracas:
You can walk?
Witness:
Yes, ma'am.
Atty. Larracas:
You can drink?
Witness:
Yes, ma'am.
Atty. Larracas:
Of course, you cannot walk if your feet were tied and
cannot drink if your mouth was sealed?
Witness:
Yes, ma'am
Atty. Larracas:
When the police arrived, what were you doing?
Witness:
I cried, ma'am. 93
It is not quite clear whether the counsel for the appellants
were asking about Angela's activities during her detention,
or during her rescue. Taking into account Angela's answers,
it is evident that her hands were tied and her mouth covered
with scotch tape the day after she was kidnapped, but that
she was free to roam around the room, practice on her
 drawings and watch television during the rest of the period
of her detention.
PROPER PENALTIES
The appellants aver that the prosecution failed to prove that in
kidnapping and illegally detaining the victim, they intended to
demand ransom from her parents. William Soriano, the
victim's father, failed to prove that the appellants or any of
them called through the telephone demanding ransom. The
collective testimonies of police operatives Tito Tuanggang,
Ricardo Dandan and George Torrente were hearsay evidence;
hence, barren of probative weight. The trial court likewise
failed to take into account the voluntary surrender of appellant
Basilan.
The Office of the Solicitor General, for its part, posits the view
that the prosecution mustered the requisite quantum of
evidence to prove that the appellants and no other demanded
ransom from the parents of the victim.
The appellants' contention does not hold water. Admittedly,
the prosecution failed to adduce direct evidence that the
appellants demanded ransom for the release of the victim.
However, the prosecution adduced circumstantial evidence to
prove beyond reasonable doubt that the appellants, or at least
one of them, demanded ransom from the Soriano spouses for
the release of their daughter.
To warrant the imposition of the death penalty for the crime of
kidnapping and serious illegal detention for ransom, the
prosecution must prove beyond reasonable doubt: (a) intent
on the part of the accused to deprive the victim of his liberty;
(b) actual deprivation of the victim of his liberty; and (c)
motive of the accused, which is ransom for the victim or other
person for the release of the victim. The purpose of the
offender in extorting ransom is a qualifying circumstance
which may be proved by his words and overt acts before,
during and after the kidnapping and detention of the
victim. 94 Neither actual demand for nor actual payment of
ransom is necessary for the crime to be committed. 95Ransom
as employed in the law is so used in its common or ordinary
sense; meaning, a sum of money or other thing of value, price,
or consideration paid or demanded for redemption of a
kidnapped or detained person, a payment that releases from
captivity. 96It may include benefits not necessarily pecuniary
which may accrue to the kidnapper as a condition for the
release of the victim. 97
Circumstantial evidence is sufficient to prove the qualifying
circumstance if (a) there is more than one circumstance; (b)
the facts from which the inferences are proven; (c) the
combination of all the circumstances is such as to produce a
conviction beyond a reasonable doubt. The circumstances
proved should constitute an unbroken chain which leads to one
fair and reasonable conclusion pointing to the accused to the
exclusion of others as the one who demanded ransom. The
circumstances proved must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and
that at the same time inconsistent with any other hypothesis
except that of guilty. 98 The prosecution must rely on the
strength of its evidence and not on the weakness of that of the
appellants. 99

In this case, the chain of circumstantial evidence adduced by

the prosecution proves that no one other than the appellants
or one of them called up the spouses Soriano through the
telephone and demanded ransom of P5,000,000:
1. Appellant Basilan is the niece of Wendy Salingatog, who was
for a time the housemaid of appellant Bisda;
2. The appellants kidnapped Angela shortly before noon on
September 3, 1998, and detained her at No. 1258 Paz Street,
Paco, Manila, where appellant Bisda held office;
3. The following morning, William was informed by his landlady
that a woman had earlier called up over the telephone
requesting her to inform William that she (the caller), would
call again the next day, September 5, 1998;
4. On September 5, 1998, William received a telephone call
from a woman demanding a ransom of P5,000,000 for Angela's
freedom. When William complained that he did not have the
amount, she told William that she cannot be responsible for it
and that she would inquire from her bosses. William's
testimony reads:
Pros. Junio:
And what did she tell you?
Witness:
She told me KUNG GUSTO MO PANG MAKITA IYONG
ANAK MO, MAGHANDA KA NG FIVE MILLION
PESOS.
Pros. Junio:
What did you told (sic) her if any?
Witness:
SAAN AKO KUKUHA NG FIVE MILLION PESOS? ALAM
MO NAMAN NA NAKATIRA LANG AKO SA
APARTMENT.
Pros. Junio:
What did she say?
Witness:
She answered, HINDI KO MASASAGOT YAN.
Pros. Junio:
Did she tell you why she could not respond to you?
Witness:
 She continued to say "TATANUNGIN KO NA LANG SA
AKING MGA BOSS." 100
5. In the morning of September 7, 1998, Inspector Ricardo
Dandan and SPO4 Tito Tuanggang, acting on an anonymous
tip, rushed to the vicinity of No. 1303 Paz Street, Paco, Manila,
the office of the MSC Freight Service, to conduct surveillance
operations. Later in the afternoon, they saw
appellant Bisda emerging from a small house about fifty
meters from the office of the MSC Freight Service;
6. At about 3:40 p.m. on September 8, 1998,
appellant Bisda emerged from the house at No. 1258 Paz
Street, and went to the small store near the house. Chief
Inspector Dandan and Tito Tuanggang were about two meters
from the store and saw appellantBisda enter the same, lift the
telephone and talk to someone over the telephone;
7. At about the same time, William received a telephone call
from a woman demanding where the money was and when
William replied that he was ready with P25,000, the woman
replied: Hindi ko masasagot iyan, dadalhin na lang namin ang
bata sa aking boss." When William intimated that he could
raise P50,000 but pleaded for more time to produce the
amount, the woman retorted: "Hindi ko masasagot iyan."
William's testimony reads:
Pros. Junio:
On September 8, 1998, at about 3:40 in the
afternoon, what happened if any?
Witness:
At around 3:40 in the afternoon of September 8, a
lady caller called again. I answered the
telephone.
Pros. Junio:
Who was this lady caller?
Witness:
I would say, my perception is it was the same lady
caller who called the first time I answered the
telephone.
Pros. Junio:
And what did she tell you?
Witness:
And she told me where is the money.
Pros. Junio:
And what did you tell her?
Witness:
And I also told her if its okey with you, my twenty-
five is ready.
Pros. Junio:
Then what did she say?
Witness:
She said "HINDI KO MASASAGOT IYAN, DADALIN NA
LANG NAMIN ANG BATA SA AKING BOSS."
Pros. Junio:
What happened next after that?
Witness:
I would like to plead that I will make it fifty thousand,
just give me ample time.
Pros. Junio:
How did she react to your suggestion?
Witness:
"HINDI KO MASASAGOT IYAN." Then she hanged (sic)
the phone. 101
8. After making the telephone call, appellant Bisda left the
store and returned to the house at No. 1258 Paz Street, Paco,
Manila;
9. The operatives from the PAOCTF followed
appellant Bisda and confronted her before she could enter the
house. The operatives then barged into the premises of No.
1258 Paz Street where they saw Angela in the room;
10. When William arrived at the PAOCTF office, with Angela
that day, he inquired from appellant Bisda why she kidnapped
Angela and what she would do with the P5,000,000 ransom
she was demanding, and the appellant replied: "Kuya, wag
(sic) kang nang maghusga, pareho lang tayong
biktima." When William asked Alma: "Biktima, saan?" The
appellant replied: "Ang anak ko, kinidnap din nila."
In light of the foregoing facts, there can be no other conclusion
than that appellant Bisdademanded a ransom of P5,000,000
from William Soriano; hence, she is GUILTY of kidnapping for
ransom. Being a conspirator, appellant Basilan is also guilty of
the said crime. The penalty for kidnapping for ransom is death,
a single and indivisible penalty. The aggravating circumstance
of use of a motor vehicle under Article 14, paragraph 20 of the
Revised Penal Code was attendant in the commission of the
crime. 102 However, said circumstance, as well as the
voluntary surrender of appellant Basilan, are inconsequential
in the penalties to be imposed on the said appellants,
conformably to Article 63 of the Revised Penal Code. 103
CIVIL LIABILITIES OF THE APPELLANTS
The trial court awarded P100,000 moral damages to the
spouses William and Marymae Soriano, the parents of the
victim. The trial court did not award any moral and exemplary
damages to the victim. The decision of the trial court has to be
modified. Under Article 2219, paragraph 7, of the New Civil
Code, moral damages may be awarded to a victim of illegal
arrest and detention. In this case, the appellants poked a knife
on the victim as they took her from the school. The appellants
also tied her hands, and placed scotch tape on her mouth. The
hapless victim was so shocked when operatives of the PAOCTF
barged into the office of appellant Bisda, and took custody of
the victim that she cried profusely. The victim suffered trauma,
mental, physical and psychological ordeal. There is, thus,
sufficient basis for an award of moral damages in the amount
of P300,000. 104 Since there were demands for ransom, not
to mention the use by the appellants of a vehicle to transport
the victim from the school to the Jollibee Restaurant and to the
office of appellant Bisda, the victim is entitled to exemplary
damages in the amount of P100,000.105 Although the victim
claims that the appellants took her earrings, the prosecution
failed to prove the value of the same.
IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional
Trial Court of Marikina City, Branch 272, is AFFIRMED WITH
MODIFICATION. The appellants, Alma Bisda and Generosa
"Jenny Rose" Basilan, are found guilty beyond reasonable
doubt of kidnapping for ransom under paragraph 4 and the
last paragraph of Article 267, of the Revised Penal Code, and
are sentenced to suffer the penalty of death by lethal injection.
The appellants are hereby directed to pay jointly and severally
to the victim Angela Michelle Soriano the amount of P300,000
by way of moral damages and P100,000 by way of exemplary
damages. Costs against the appellants.
Three Justices of the Court maintain their position that Rep. Act
No. 7659 is unconstitutional insofar as it prescribes the death
penalty; nevertheless, they submit to the ruling of the majority
that the law is constitutional, and that the death penalty can
be lawfully imposed in the case at bar.
In accordance with Section 25 of Rep. Act No. 7659 amending
Section 83 of the Revised Penal Code, let the records of this
case be forthwith forwarded, upon finality of this Decision, to
the Office of the President for possible exercise of the
pardoning power. Costs against the appellants. AIDSTE
SO ORDERED.
||| (People v. Bisda, G.R. No. 140895, [July 17, 2003], 454 PHIL
194-240)

THIRD DIVISION

[G.R. Nos. 143844-46. November 19, 2002.]

PEOPLE OF THE PHILIPPINES, appellee, vs.

ATANACIO MENDOZA,appellant.

The Solicitor General for plaintiff-appellee.

Samuel S. Samuela for accused-appellant.

SYNOPSIS

Atanacio Mendoza was charged with two counts of rape by

Marilyn Bernardo that took place on February 1996 and March
1997 and with one count of rape by Jennifer Fernandez that
took place on March 25, 1998. During trial, Mendoza
interposed denial as a defense. Thereafter, in a joint judgment,
the trial court gave credence to the clear and positive
testimonies of private complainants, thus, it convicted
Mendoza of three counts of rape and the penalty of reclusion
perpetua was imposed upon him in each count. In this appeal,
Mendoza contended, among others, that the prosecution failed
to present evidence sufficient to convict him of the offenses
charged. CSAcTa
The Court was partly convinced. In order for rape to be
consummated, there must be proof of the entry or sliding of
the male organ into the labia of the pudendum of the female
organ. As to the charge that the first rape incident that
happened in February 1996, there was nothing in the
testimony of Marilyn that would prove that appellant's penis
reached the labia of her pudendum. Hence, the Court cannot
conclude with moral certainty that appellant should be held
liable for consummated rape. In contrast, her testimony
regarding the March 1997 incident indicated with certainty
that the penis of appellant penetrated her vagina.
As to Jennifer's accusation of rape, the evidence on record
convincingly proved the consummation of rape.
Accordingly, appellant was found guilty of one count of
attempted rape and two counts of simple rape.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES;

ASSESSMENT OF THE TRIAL COURT IS CONCLUSIVE. When it
comes to the issue of credibility of witnesses, we generally
defer to the assessment of the trial court, because it had the
singular opportunity to observe their demeanor. Thus, its
findings are conclusive, unless it is shown that certain facts of
substance and value have been plainly overlooked. In the
present case, a review of the records and the transcripts
shows that the RTC had ample opportunity to examine the
testimony of the complaining witnesses. Appellant has not
given us sufficient reason to overturn the lower court's factual
findings. DISEaC
2. ID.; ID.; ID.; NOT DETRACTED BY THE LONG SILENCE AND
DELAY IN REPORTING THE RAPE CASES. [I]n the prosecution
of rape cases, it is well-settled that long silence and delay in
reporting the crime cannot detract from the victim's credibility,
especially where the delay is satisfactorily explained.
3. ID.; ID.; ID.; ID.; CASE AT BAR. In Jennifer's case, reporting
the crime four months after it occurred is hardly unreasonable.
Meanwhile, in the case of Marilyn, the fact that she waited two
years before she reported the dastardly deeds was justified by
her feat.
4. ID.; ID.; ID.; NOT PROPER TO JUDGE THE ACTION OF
CHILDREN WHO HAVE UNDERGONE TRAUMATIC EXPERIENCES
BY THE NORMS OF BEHAVIOR EXPECTED OF MATURE
INDIVIDUALS. It must be noted that a young girl, unlike a
mature woman, cannot be expected to have the courage and
the intelligence to report immediately a sexual assault
committed against her, especially when a death threat hangs
over her head. It is not proper to judge the action of children
who have undergone traumatic experiences by the norms of
behavior expected of mature individuals under similar
circumstances. This is especially true in the case at bar, in
which the malefactor was a trusted friend and neighbor.
5. ID.; ID.; ID.; DECLARATIONS MADE IN OPEN COURT ARE
GIVEN MORE WEIGHT THAN STATEMENTS TAKEN EX PARTE.
[W]e find nothing suspicious that would lead us to believe that
the charges were fabricated. The inconsistency cited does not
by itself destroy the credibility of Marilyn as to what transpired
in February 1996 and March 1997. She ably clarified this
seeming inconsistency during her testimony when she
explained that in February 1996, appellant had not been able
to insert his penis fully into her vagina after placing his finger
inside, but succeeded later in March 1997. Verily, declarations
made in court are given more weight than statements
taken ex parte, because the latter are almost always
incomplete and inaccurate.
6. CRIMINAL LAW; RAPE; NO RESPECTER OF TIME AND PLACE.
[W]e have consistently held that rape is no respecter of
time and place. It can be committed even in places where
people congregate, in parks, along the roadside, within school
premises, inside a house or where there are other occupants,
and even in the same room where there are other members of
the family who are sleeping.
7. ID.; ID.; TO BE CONSUMMATED, THERE MUST BE PROOF OF
THE ENTRY OR THE SLIDING OF THE MALE ORGAN INTO THE
LABIA OF THE PUDENDUM OF THE FEMALE ORGAN. In order
for rape to be consummated, there must be proof of the entry
or the sliding of the male organ into the labia of the pudendum
of the female organ. Full penetration is not necessary. As held
in People v. Campuhan, "touching when applied to rape cases
does not simply mean mere epidermal contact, stroking or
grazing of organs, a slight brush or a scrape of the penis on
the external layer of the victim's vagina, or themons pubis. . . .
There must be sufficient and convincing proof that the penis
indeedtouched the labia or slid into the female organ, and not
merely stroked the external surface thereof, for an accused to
be convicted of consummated rape."
8. ID.; ID.; ID.; NOT ESTABLISHED IN CASE AT BAR. The
words of Marilyn "nakapatong lang" show that there was
no entry into her private part. There is nothing in her
testimony that would prove that appellant's penis reached the
labia of her pudendum. Although the testimony of a child must
be received with due consideration on account of her tender
age, the Court endeavors at the same time to harness only
what in her story appears to be true, acutely aware of the
equally guaranteed rights of the accused. Hence, based on the
testimony of Marilyn, we cannot conclude with moral certainty
that appellant should be held liable for consummated rape.
9. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES;
RAPE VICTIM OF TENDER AGE WOULD NOT NORMALLY
CONCOCT A STORY OF DEFLORATION. Time and time again,
we have said that a rape victim, especially one of tender age,
would not normally concoct a story of defloration, allow an
examination of her private parts and thereafter permit herself
to be subjected to a public trial, if she is not motivated solely
by the desire to have the culprit apprehended and punished.
Thus, when a woman more so if she is a minor says that
she has been raped, she says in effect all that is necessary to
show that rape was committed. And as long as the testimony
meets the test of credibility, the accused may be convicted on
that sole basis.
10. ID.; ID.; ID.; COMPLAINANT'S TESTIMONY IS STRONGLY
SUPPORTED BY THE MEDICAL FINDINGS. Jennifer's testimony
is strongly supported by the medical findings conducted by the
medicolegal expert three months after the incident. The
Medical Report showed that the victim had old healed
lacerations at the five o'clock and the seven o'clock positions.
This finding is consistent with penile invasion. Where the
victim's claim of rape is corroborated by the physical findings
of penetration, there exists sufficient basis for concluding that
sexual intercourse did take place.
11. ID.; ID.; ID.; ALIBI AND DENIAL; CANNOT PREVAIL OVER
THE POSITIVE IDENTIFICATION OF THE ACCUSED. As
consistently held by this Court, alibi and denial cannot prevail
over the positive identification of the accused as the
perpetrator of the crime. For the defense of alibi to prosper,
the accused must establish clearly and convincingly that it was
physically impossible for him to have been at the crime scene
when it happened. In the present case, appellant failed to
show, by clear and convincing proof, that it was physically
impossible for him to have been at the loci criminis.
12. ID.; ID.; ID.; MOTIVE; UNNATURAL FOR A MOTHER TO USE
HER DAUGHTER AS AN ENGINE OF MALICE. Neither can we
accept the theory of appellant that it was Prescilla Bernardo,
his godmother and Marilyn's mother, who instigated her
daughter to file the charges. We reiterate that it is unnatural
for a mother to use her daughter as an engine of malice,
especially if it will subject her offspring to embarrassment and
lifelong stigma. A mother would not sacrifice the honor of her
daughter to give vent to a grudge that would tarnish the
latter's reputation forever.
13. CRIMINAL LAW; REPUBLIC ACT NO. 8353 (THE ANTI-RAPE
LAW OF 1997); NOT APPLICABLE FOR THE CRIME COMMITTED
IN FEBRUARY 1996; CASE AT BAR. [T]he trial court erred in
ruling that the acts committed by appellant in Criminal Case
No. 6060-98-C were covered by Articles 266-a and 266-b of the
Revised Penal Code. Republic Act No. 8353 or "The Anti-Rape
Law of 1997" reclassified the crime of rape as a crime against
person and renumbered it from Article 335 to Articles 226-A to
226-B of the Revised Penal Code. The amendment took effect
on October 22, 1997. On the other hand, the crime charged
herein was committed in February 1996. Hence, appellant can
only be held liable under the old Article 335 of the Revised
Penal Code.
14. ID.; ATTEMPTED RAPE; IMPOSABLE PENALTY. Under
Article 6 in relation to Article 335 of the Revised Penal Code,
rape is merely attempted when the offender commences the
commission of the crime directly by overt acts, but does not
perform all the acts of execution by reason of some cause or
accident other than his own spontaneous desistance. The
penalty is two (2) degrees lower than the imposable penalty
of reclusion perpetua. Two (2) degrees lower is prision mayor,
the range of which is six (6) years and one (1) day to twelve
(12) years. Applying the Indeterminate Sentence Law, and in
the absence of any mitigating or aggravating circumstance,
the maximum of the penalty to be imposed upon the accused
shall be taken from the medium period ofprision mayor, the
range of which is eight (8) years and one (1) day to ten (10)
years; while the minimum shall be taken from the penalty next
lower in degree, which is prision correccional, the range of
which is from six months and one (1) day to six (6) years.

15. ID.; RAPE; CIVIL LIABILITY; P50,000 AWARDED FOR EACH

COUNT OF CONSUMMATED RAPE AND P30,000 AWARDED FOR
THE ATTEMPTED RAPE AS CIVIL INDEMNITY; P50,000 AWARDED
FOR EACH COUNT OF CONSUMMATED RAPE AND P15,000
AWARDED FOR THE ATTEMPTED RAPE AS MORAL DAMAGES.
[P]ursuant to prevailing jurisprudence, P50,000 is awarded to
the victim as indemnity ex delicto for each count of
consummated rape, and P30,000 for the attempted rape. In
addition, moral damages in the amount of P50,000 is awarded
to her for the consummated rape and P15,000 for the
attempted rape. cCSHET

DECISION

PANGANIBAN, J p:
A rape victim, especially one who is of tender age, would not
normally concoct a story of defloration, allow an examination
of her private parts and undergo a public trial, if she is not
motivated solely by the desire to have her ravisher
apprehended and punished. As long as her testimony meets
the test of credibility, the accused may be convicted on that
sole basis.
Statement of the Case
Atanacio Mendoza appeals the March 23, 2000 "Joint
Judgment" 1 of the Regional Trial Court (RTC) of Calamba,
Laguna (Branch 34) in Criminal Case Nos. 6059-98-C, 6060-98-
C and 6061-98-C, convicting him of three (3) counts of rape.
The dispositive portion of the assailed Decision reads as
follows:
"In Criminal Case No. 6059-98-C
"This Court finds accused Atanacio Mendoza GUILTY
beyond reasonable doubt of the crime of Rape as
defined and penalized under Article 335 of the
Revised Penal Code, as amended, and hereby
sentences him to suffer the penalty of RECLUSION
PERPETUA with all its attendant accessory penalties.
 "Accused is further directed to indemnify complaining
witness Marilyn Bernardo the sum of Fifty Thousand
(Php50,000.00) Pesos as and for moral damages.
"In Criminal Case No. 6060-98-C
"This Court finds accused Atanacio Mendoza GUILTY
beyond reasonable doubt of the crime of Rape as
defined and penalized under Articles 266-a and 266-
b of the Revised Penal Code, as amended, and
hereby sentences him to suffer the penalty of
RECLUSION PERPETUA with all its attendant
accessory penalties.
"Accused is further directed to indemnify complaining
witness Marilyn Bernardo the sum of Fifty Thousand
(Php50,000.00) Pesos as and for moral damages.
"In Criminal Case No. 6061-98-C
"This Court finds accused Atanacio Mendoza GUILTY
beyond reasonable doubt of the crime of Rape as
defined and penalized under Articles 266-a and 266-
b of the Revised Penal Code, as amended, and
hereby sentences him to suffer the penalty of
RECLUSION PERPETUA with all its attendant
accessory penalties.
"Accused is further directed to indemnify complaining
witness Jennifer Fernandez the sum of Fifty Thousand
(Php50,000.00) Pesos as and for moral damages." 2
Three separate Informations, 3 all dated July 31, 1998,
charged appellant as follows:
Criminal Case No. 6059-98-C
"That sometime in March 1997, at Brgy. Parian,
Municipality of Calamba, Province of Laguna and
within the jurisdiction of this Honorable Court, the
above-named accused, through force, violence and
 intimidation and with lewd design did then and there
wilfully, unlawfully and feloniously have carnal
relation with one MARILYN BERNARDO y BUNO fifteen
(15) years old minor, against her will and consent, to
her damage and prejudice." 4
Criminal Case No. 6060-98-C
"That sometime in February 1996, at Brgy. Parian,
Municipality of Calamba, Province of Laguna and
within the jurisdiction of this Honorable Court, the
above-named accused, while conveniently armed
with a handgun, through force, violence and
intimidation and with lewd design did then and there
wilfully, unlawfully and feloniously have carnal
relation with one MARILYN BERNARDO y BUNO fifteen
(15) years old minor, against her will and consent, to
her damage and prejudice." 5
Criminal Case No. 6061-98-C
"That on or about March 25, 1998, at Brgy. Parian,
Municipality of Calamba, Province of Laguna and
within the jurisdiction of this Honorable Court, the
above-named accused, through force, violence and
intimidation and with lewd design did then and there
wilfully, unlawfully and feloniously have carnal
relation with one JENNIFER FERNANDEZ y MATA
sixteen (16) years old minor, against her will and
consent, to her damage and prejudice." 6
During his arraignment on September 16, 1998, appellant,
assisted by his counsel, 7 pled not guilty to the
charges. 8 After a joint trial of the cases, the lower court
rendered the assailed Judgment.
The Facts
Version of the Prosecution
In its Brief, the Office of the Solicitor General (OSG) presents
the prosecution's version of the facts as follows: 9
"Criminal Cases No. 5059-98-C and 6060-98-C
"Sometime in February 1996, Marilyn Bernardo, who
was then fifteen (15) years old, and her eleven-year
brother Jose Bernardo were entrusted by their
mother to the care of appellant, their mother's
godson. Their mother left their house in Centerville,
Calamba, Laguna to visit her relatives in Batangas.
Their father was not living with them, having
separated from their mother.
"Around 1:00 o'clock in the morning, Marilyn, who
was then sleeping in her mother's room together with
her younger brother Jose, was roused from her sleep
when she felt somebody, who turned out to be
appellant, touching her body. Appellant threatened
Marilyn not to move or shout or tell anyone what was
happening or else he would shoot her. Marilyn felt a
gun pointed at her.
"Appellant inserted his finger into Marilyn's private
part and ordered her to remove her clothes. Out of
fear, Marilyn removed her clothing. When appellant
went on top of her, Marilyn tried to resist by boxing
appellant but she was eventually overpowered by the
former who succeeded in inserting his penis into her
organ. The frightened victim felt pain and could only
cry as she was being defiled by appellant.
"Jose was awakened by the resistance put up by
Marilyn and saw appellant on top of [his] sister. He
was however too afraid to do anything because
appellant threatened to kill him.
"Before leaving, appellant warned Marilyn and Jose
not to tell anyone otherwise he would kill them.
"When her mother arrived in the afternoon of the
following day, Marilyn did not report the incident
because she was frightened of appellant's threat.
"This sexual outrage was repeated sometime in
March 1997 when at around 2:00 o'clock in the
morning, appellant entered Marilyn's room, poked
something at her back, and warned her that if she
shouted, he would shoot her. Appellant then inserted
his finger into her private part. Marilyn boxed
appellant and pleaded with him. Appellant ignored
her plea and went on top of her saying, 'Umayos ka,
umayos ka.' Notwithstanding the resistance put up
by Marilyn, appellant succeeded in consummating his
lust. Before leaving, appellant warned Marilyn not to
tell anyone, otherwise he would kill her and her
family.
"Again, Jose was awakened by the resistance put up
by [his] sister and tried to leave the room. Appellant
pulled his arms and told him to stay. Frightened and
intimidated, he went back to sleep.
"The siblings' mother was not in their house when
appellant repeated his sexual assault on Marilyn.
"Sometime in the early part of 1998, Marilyn
revealed to her mother that she was sexually
assaulted by appellant. Ruben Cabatbat, a
barriomate and a fellow member of the victim's
mother in a religious organization, learned about the
incident from the victim and assisted her and her
mother in prosecuting appellant.
"On June 15, 1998, Marilyn was examined by Dr.
Lorna P. Sta. Maria. The medical examination
revealed that Marilyn's hymen had 'old-healed
lacerations at 3 o'clock and 6 o'clock position.'
"On June 18, 1998, Marilyn was emboldened to report
to the authorities the sexual assaults committed
against her by appellant after learning that Jennifer
Fernandez had already filed a similar case against
appellant.
"Criminal Case No. 6060-98-C
"Around 2:00 o'clock in the afternoon of March 25,
1998, Jennifer Fernandez was on her way to school at
Pulo National High School when she saw appellant
waiting for her at the corner of Centerville which was
near her house in Barangay Paciano Rizal, Calamba,
Laguna. Appellant told Jennifer to go with him. When
Jennifer refused, appellant threatened her by saying
that something would happen to her. Frightened,
Jennifer went with appellant who held her arms.
Jennifer tried to resist by boxing appellant to no avail.
"Appellant forced Jennifer to board a passenger jeep
where they were the only passengers. They alighted
at Parian, Calamba, Laguna, where a tricycle was
already waiting for them. Jennifer was made to board
the tricycle which brought them to Riverview Hotel.
At the hotel premises, appellant left her inside the
tricycle. Jennifer did not run nor shout as she was
very frightened of appellant. She also heard
appellant telling the tricycle driver to guard her
otherwise he would hold the driver accountable.
"Appellant subsequently returned and dragged
Jennifer inside one of the rooms of the hotel. Once
inside the room, appellant ordered Jennifer to
undress. When she refused, appellant slapped her
three times and threatened her, 'Kung hindi ka
papayag, papatayin kita.' Frightened Jennifer
undressed and appellant kissed her private parts.
Jennifer tried to resist by boxing appellant. She also
 cried and pleaded with appellant to desist from what
he was doing. Appellant responded by boxing
Jennifer on the stomach, causing the latter to twist in
pain. Appellant then mounted her and inserted his
manhood into her private part. After appellant had
ejaculated inside Jennifer, he took a towel and wiped
the semen on his organ. He told Jennifer to dress-up.
"After appellant and Jennifer had left the room and
were outside of the hotel, Jennifer ran away and
boarded a jeep. She proceeded to her school where
her crying drew queries from her classmates but she
did not reveal to them the reason for her tears as she
was afraid of the threat made by appellant. Jennifer
went home at around 5:00 o'clock in the afternoon
and just stayed in her room where she continued
crying.

"Sometime in the early part of 1998, Jennifer

revealed to her parents that she was sexually
assaulted by appellant.
"On June 2, 1998, Dr. Charisa Juangco examined
Jennifer. The medical examination revealed that
Jennifer had an old healed laceration at 5:00 o'clock
and 7:00 o'clock position.'
"On June 3, 1998, Jennifer reported her ordeal to the
authorities. She was afraid to report it earlier
because appellant threatened to kill her and her
family." 10(Citations omitted)
Version of the Defense
Appellant denied the charges. Before the RTC, he testified that
Marilyn Bernardo had filed the cases against him as an
offshoot of a quarrel. That quarrel was supposedly between his
wife, Fely; and Marilyn's mother, Prescilla Bernardo 11 a
preacher herself, who belonged to the same religious group as
he. He said that when Prescilla advised him to leave Fely, he
ignored said advice and thereafter absented himself from the
preaching activities of the group. His acts allegedly enraged
Prescilla, who then concocted the charges against him. 12 He
averred further that he hardly left his house during the months
of February 1996 and March 1997. 13
As regards the rape charge of Jennifer Fernandez, appellant
alleged that on March 25, 1998, he attended the birthday
party of his neighbor and friend, Mario Manaig. He was in
Mario's house from ten o'clock in the morning of that day until
two o'clock the next morning, March 26, 1998. 14
The defense of appellant was corroborated by his wife, Fely
Mendoza, as well as by Mario Manaig and Cecille Manaig.
Cecille and Fely further testified that Jennifer Fernandez
confided to them that she had been raped by her own brother,
Ricardo Salazar. Allegedly, she did not file a complaint against
him for fear that he might eject her from his house. 15
Another witness, Maria Lydia Borlongan, resident manager of
the Riverview Resort and Hotel, testified that during her 24-
hour duty on March 25, 1998, she could not recall any rape
that had taken place in one of the hotel rooms. 16
The Trial Court's Ruling
The RTC gave credence to the clear and positive testimonies of
private complainants. It said: "Complaining witnesses in the
cases at bar are both minors . . . [a]nd this circumstance,
standing alone, overwhelms the constitutional presumption of
innocence in favor of the accused. And ranged against the
positive clear testimonies of the complaining witnesses, the
defense of alibi and fabrication invoked by the accused cannot
hope to succeed." 17
Hence, this appeal. 18
The Issues
In his Brief, appellant submits the following assignment of
errors for our consideration:
"I.
"The trial court gravely erred in holding that the fact
of minority of both complaining witnesses in Criminal
Cases Nos. 6059-98-C, 6060-98-C and 6061-98-C
standing alone, overwhelms the constitutional
presumption of the innocence of the accused.
"II.
"The trial court gravely erred in holding that the
delay of the disclosure of the complaining witnesses
to disclose the fact of rape cannot reverse the wheels
of guilt of the accused.
"III.
"The trial court gravely erred when it failed to
consider and appreciate evidence for the appellant
that the incident of rape against Jennifer Fernandez
was allegedly committed inside a hotel, or that the
alleged assault against Marilyn Bernardo was
committed inside a room in the company of the
victim's brother.
"IV.
"The trial court gravely erred in holding that the
inconsistency in the sworn statement of Marilyn Buno
Bernardo against her declaration in Court do[es] not
unnecessarily discredit her.
"V.
"The trial court gravely erred in holding that
appellant is guilty of the crime punished under Article
335 in Criminal Case No. 6061-98-C in the judgment
received on March 31, 2001.
"VI.
 "The trial court gravely erred in holding [that] the
appellant is guilty of the crime of rape as defined and
penalized under Articles 266-A and 266-B of the
Revised Penal Code, as amended, in Criminal Case
No. 6060-98-C in the judgment received on April 6,
2000." 19
In the main, this Court is being asked to reverse the lower
court on two grounds: (1) the incredible testimony of
complainants and (2) the prosecution's failure to rebut the
constitutional presumption of innocence in favor of appellant.
The Court's Ruling
The appeal is partly meritorious.
First Issue:
Credibility of Private Complainants
Appellant faults private complainants for their long delay in
reporting the alleged crimes. He asserts that it was unnatural
for Marilyn Bernardo to wait for two years after the supposed
first rape before filing the charges. He also casts doubts on her
credibility by citing material inconsistencies between her
Sworn Statement and her testimony. Finally, he contends that
it was improbable for him to have raped Marilyn inside a
bedroom she shared with her brother.
We disagree. When it comes to the issue of credibility of
witnesses, we generally defer to the assessment of the trial
court, because it had the singular opportunity to observe their
demeanor. 20 Thus, its findings are conclusive, unless it is
shown that certain facts of substance and value have been
plainly overlooked. 21 In the present case, a review of the
records and the transcripts shows that the RTC had ample
opportunity to examine the testimony of the complaining
witnesses. Appellant has not given us sufficient reason to
overturn the lower court's factual findings.
Moreover, in the prosecution of rape cases, it is well-settled
that long silence and delay in reporting the crime cannot
detract from the victim's credibility, 22 especially where the
delay is satisfactorily explained. 23
In Jennifer's case, reporting the crime four months after it
occurred is hardly unreasonable. Meanwhile, in the case of
Marilyn, the fact that she waited two years before she reported
the dastardly deeds was justified by her fear. She explained as
follows:
"FISCAL:
Q I noticed that you were only investigated on June
18, 1998 in the incidence that you have narrated
happened on February 1996 and March 1997.
Can you tell us why it was only on June 18, 1998
when you gave your statement to the
investigator?
WITNESS:
A Because I was very afraid of him, sir, and the
reason why I gave my statement on June 18,
1998 I learned that somebody [h]as filed a case
against him.
Q Do you know who['s] this somebody whom you
said filed a case against the same accused
Atanacio Mendoza?
A Yes, sir.
Q Who?
A Jennifer Fernandez, sir.
Q You said the reason why you did not immediate[ly]
give your statement because you were afraid of
the accused. Why were you afraid of the
accused?
WITNESS:
 A Because he threatened me that he will kill me and
my mother and brother, sir.
"FISCAL:
Q This Atanacio Mendoza the accused in these two
case[s], do you know where he was residing?
A Yes sir.
Q Where?
A He is our neighbor at Centerville, sir." 24
It must be noted that a young girl, unlike a mature woman,
cannot be expected to have the courage and the intelligence
to report immediately a sexual assault committed against her,
especially when a death threat hangs over her head. 25 It is
not proper to judge the action of children who have undergone
traumatic experiences by the norms of behavior expected of
mature individuals under similar circumstances. 26 This is
especially true in the case at bar, in which the malefactor was
a trusted friend and neighbor.
Relying on People v. Wilson, 27 appellant wants us to
disregard the testimony of Marilyn because of the alleged
"substantial inconsistency" between her Sworn Statement and
her open court testimony. In the former, she alleged that
during the February 1996 rape incident, ". . . hindi po natuloy
na ipasok niya ang kanyang ari sa akin . . . "; 28 but in the
latter, she said that he was able to insert his penis fully into
her vagina. 29
Appellant's reliance on Wilson 30 is misplaced. That case
pertains to two different Sworn Statements executed a day
apart. The first affidavit charged the accused with attempted
rape; the second, with consummated rape. The latter
Statement resulted in the filing of an amended Complaint
changing the charge from attempted to consummated rape.
No plausible explanation was offered by the victim for the
sudden change. Moreover, the physical evidence did not
corroborate the allegation. Hence, the accusation was deemed
unworthy of credence.
In the present case, we find nothing suspicious that would lead
us to believe that the charges were fabricated. The
inconsistency cited does not by itself destroy the credibility of
Marilyn as to what transpired in February 1996 and March
1997. She ably clarified this seeming inconsistency during her
testimony when she explained that in February 1996,
appellant had not been able to insert his penis fully into her
vagina after placing his finger inside, but succeeded later in
March 1997. 31 Verily, declarations made in court are given
more weight than statements taken ex parte, because the
latter are almost always incomplete and inaccurate. 32
As to the improbability of committing rape in a public place as
pointed out by appellant, we have consistently held that rape
is no respecter of time and place. 33 It can be committed even
in places where people congregate, in parks, along the
roadside, within school premises, inside a house or where
there are other occupants, and even in the same room where
there are other members of the family who are sleeping. 34
It must be noted that in the case of Marilyn, her younger
brother who was sleeping beside her was awakened by the
sound of his sister apparently "fighting" someone else. He then
saw appellant "on top" of her. The boy clearly narrated what
he saw in this wise:35
"FISCAL:
"Q Now sometime in February 1996, do you recall
having seen or witnessed any unusual incident
that happened to your sister Marilyn Bernardo?

A Yes, sir.
Q Please tell the Court what that unusual incident
that happened to your sister that you witnessed
all about?
A I saw Atanacio Mendoza on top of my sister sir.
Q And in what place, did you see the accused on top
of your sister on that date of February 1996?
A In our house.
Q And how did you happen to see that?
A I was awakened because I felt that my sister was
fighting.
Q When you said you were awakened because your
sister was fighting with the accused, what did
you do when you woke up?
A Nothing sir because I was afraid.
Q Why were you afraid?
A Because I was told that we will be killed.
Q By whom?
A By Atanacio Mendoza.
FISCAL:
Q You said this incident happened in your house,
what part of your house did you see the accused
on top of your sister when your sister was
fighting him?
A In the bedroom of my mother sir.
Q Who were inside the room where you said you saw
the accused on top of your sister?
A Only the two of us, my sister and I.
Q When you said your sister, you are referring to
Marilyn Bernardo.
A Yes, sir.
Q And after you were threatened that you would be
killed and you said you were scared, what
happened next, if any?
A That's it, sir. I was not able to do anything because
I was afraid.
Q How about the accused, what did he do next after
you said you were threatened?
A Nothing more.
xxx xxx xxx
Q How about on March 1997, do you recall also of
any unusual incident that happened to your
sister which you witnessed?
A The same sir.
Q When you said the same, what do you mean?
A [Katulad] din noon.
Q The man you saw or you saw again was Atanacio
Mendoza on top of your sister?
A Yes, sir.
Q When did this incident took place?
A Inside the room of my mother.
Q In the same bedroom of your mother where you
saw the accused on top of your sister?
A Yes, sir.
Q What was your sister doing at the time you saw
him for the second time that the accused was on
top of your sister?
A She was fighting sir.
Q Who were inside the bedroom?
 A The two of us sir.
Q And then what did you do when you again saw the
accused on top of your sister and your sister was
fighting?
A I was then to go out of the room when he pulled
my arms and told me not to leave the room.
Q Did you notice anything at the time the accused
told you not to leave the room?
A Yes, sir.
Q What was he holding?
A I cannot recall because his hands were at the back
of my sister.
Q And when you were told not to leave the room,
what did you do?
A I just slept and was frightened." 36
Second Issue:
Sufficiency of the Prosecution Evidence
Appellant contends that the prosecution failed to present
evidence sufficient to convict him of the offenses charged.
We are partly convinced. In order for rape to be consummated,
there must be proof of the entry or the sliding of the male
organ into the labia of the pudendum of the female
organ. 37 Full penetration is not necessary. As held in People
v. Campuhan, 38 "touching when applied to rape cases does
not simply mean mere epidermal contact, stroking or grazing
of organs, a slight brush or a scrape of the penis on the
external layer of the victim's vagina, or the mons pubis. . . .
There must be sufficient and convincing proof that the penis
indeed touched the labia or slid into the female organ, and not
merely stroked the external surface thereof, for an accused to
be convicted of consummated rape." 39
As to the charge that the first rape incident happened in
February 1996, Marilyn testified during her direct examination
that appellant had been able to insert his penis fully into her
vagina. 40 On cross-examination, when asked to clarify her
Sworn Statement, in which she said "hindi po niya natuloy
maipasok ang kanyang ari sa akin," she explained as follows:
"ATTY. SAMUELA:
Q. Madam witness, just a while ago you just testified
that in February 1996, the accused in this case
was able to insert his penis in your private part.
In fact, you did not come to know if and when he
stopped his penis. Now, you are telling in
this Sinumpaang Salaysay that 'hindi po natuloy
ipasok niya ang kanyang ari sa akin.' Will you
please tell the Honorable Court which is true in
your statement a while ago and the statement
appearing in thisSinumpaang Salaysay?
xxx xxx xxx
WITNESS:
A Because on February 1996 he first inserted his
finger into my private part, sir, and then he went
on top of me. But he was not able to insert his
private part into my private part, sir. But on
March 1997, that was the time when he was able
to do what he wanted to do with me, sir." 41
On re-direct examination, she declared:
"FISCAL
Q Now, when asked by the defense counsel regarding
that incident of February 1996 you said that the
accused was able to insert his penis into your
private part and your answer was 'yes', now you
were referring to your statement regarding the
same incident wherein you stated the following:
 Hindi po natuloy na maipasok niya ang ari niya sa
akin?
FISCAL:
Q What do you mean by that?
A 'Hindi po nakabaon, nakapatong lang.'
Q When you said that 'hindi nakabaon at nakapatong
lang', can you elaborate that?
A Because when he is trying to insert his private part
into mine I was resisting and fighting so he was
not able to insert his private part." 42
The words of Marilyn "nakapatong lang" show that there
was no entry into her private part. There is nothing in her
testimony that would prove that appellant's penis reached the
labia of her pudendum.
Although the testimony of a child must be received with due
consideration on account of her tender age, the Court
endeavors at the same time to harness only what in her story
appears to be true, acutely aware of the equally guaranteed
rights of the accused. 43Hence, based on the testimony of
Marilyn, we cannot conclude with moral certainty that
appellant should be held liable for consummated rape.
In contrast, her testimony regarding the March 1997 incident
indicated certainty that the penis of appellant penetrated her
vagina. Her consistent and firm declaration "Nakuha na niya
ang pagkababae ko" meant that he was able to insert his
penis fully into her vagina. Recounting her ordeal, she testified
thus:
"FISCAL:
Q Tell us, why the accused was in your house in the
morning of March 1997?
A Because he was trusted by my mother to look
[after] us, sir.
Q How was he entered into your room?
A 'Sinusubaybayan po niya kami,' sir.
Q . . . . What did he do to you after he entered the
room?
A He again touched my body, sir.
Q What did you do when he was touching your body?
A I was again surprised, sir.
Q What did you tell him when you were surprised
that he was touching your body?
A I told him not to do it, sir.
Q And when you told him not to do it what did he do?
A He again poked something at my back and again
told me that if I made a noise or shout, he will
shoot me, sir.
Q What did you feel when you were threatened by
the accused?
A I was very afraid, sir, because I felt pain when he
pointed something at my back, sir.
Q After he touched you and threatened you, what did
he do next?
A He inserted his finger into my private part, sir.
Q What did you do when he inserted his finger to
your private part?
A I was boxing him and pleading him not to do what
he was doing but he forced me and went on top
of me, sir.
Q What did you feel when he inserted his finger to
your private part?
A It was very painful, sir.
 Q You said he went on top of you, what did he do
when he was on top of you?
A I was boxing him so that I could keep away from
him, but he was forcing me and told me 'umayos
ka, umayos ka' but I continue[d] boxing and
kicking him, sir.
Q What happened after you said you were pleading
him, boxing him and he was forcing you?
A He went on top of me, sir.
Q While on top of you, what did he do?
A 'Nakuha na niya ang gusto niya,' sir.
Q When you said, when he was able to get what he
wanted to get, what do you mean by that?
A He abused me, sir, 'nakuha ang pagkababae ko.'
Q After you said that he was able to do his purpose,
what did he do next?
A He threatened me, sir.
Q How did he threaten you?
A Not to tell anybody what happened to me, sir, or
else he will kill us.
Q What did you feel when you were threatened by
the accused?
A I was very afraid and whenever I see him I get
m[a]d at him and always afraid of him, sir.
Q You said that whenever you see him, you got afraid
with him. Why?
A 'Napakahayop niya."' 44
As to Jennifer's accusation of rape, the evidence on record
convincingly proves the consummation of rape.
Time and time again, we have said that a rape victim,
especially one of tender age, would not normally concoct a
story of defloration, allow an examination of her private parts
and thereafter permit herself to be subjected to a public trial,
if she is not motivated solely by the desire to have the culprit
apprehended and punished. 45 Thus, when a woman more
so if she is a minor says that she has been raped, she says
in effect all that is necessary to show that rape was
committed. And as long as the testimony meets the test of
credibility, the accused may be convicted on that sole
basis. 46
Jennifer readily recounted her traumatic experience as follows:
FISCAL:
Q At around 2:00 o'clock in the afternoon of March
25, 1998, tell us where you were if you could still
recall?
A I was then going to school sir.
xxx xxx xxx
Q And while you were walking in that afternoon of
March 25, 1998 going to your school, do you
recall of any incident that happened to you?
A Yes, sir.
Q Could you tell the Court what was that unusual
incident that happened to you?
A I was then going to the school when Atanacio
Mendoza waited for me in the corner of
Centerville.
Q Where was this Centerville where Atanacio was
waiting for you or 'inaabangan ka?'
A It is near our house, sir.
Q And where is [your] house located?
What barangay and municipality?

A Brgy. Paciano Rizal, Calamba, Laguna.

Q When you said the accused Atanacio Mendoza was
at the corner of Centerville, Paciano Rizal,
Calamba, Laguna and you were then walking,
what did he do to you?
A He told me to go with him and I answered him I do
not want but he told me that If I will not go with
him something will happen to me.
Q Did he tell you why he wanted you to go with him?
A Yes, sir.
Q What did he tell you?
A He just told me to go with him and if I will not,
something will happen to me.
Q When he said if you will not go something will
happen to you, what did you feel?
A I was afraid sir.
Q And what did you do after you were threatened by
the accused that if you will not go with him
something will happen to you?
A Because I was very afraid I just went with him but I
was fighting him.
Q How were you fighting him?
A While he was holding my arm, I was boxing him.
Q And where were you brought by the accused?
A He boarded me in a passenger jeep and brought
me to Riverview Hotel.
Q That passenger jeep where you said you were
made to ride, was there any passenger at that
time?
A None, sir.
Q Do you know the driver of the jeep?
A No, sir.
Q Do you know if the driver is known to the accused?
A No, sir.
Q You said you were brought by the accused to
Riverview, where is that Riverview where you
said you were brought by the accused?
A In Parian when we alighted from the passenger
jeep there was already a tricycle waiting for us
and he made [m]e board the tricycle and the
driver of the tricycle brought us inside the
Riverview and he left me inside the tricycle and
took a number and brought me inside the room.
Q When you were left inside the tricycle why did you
not run and shout?
A Because he is known to the tricycle driver and he
told the tricycle driver to guard me and I was
very afr[a]id.
Q Before the accused left and g[o]t a number, was
there any conversation between the tricycle
driver and the accused?
A None sir.
Q How were you able to say that the driver of the
tricycle is known to the accused?
A Because the accused told the tricycle driver to
guard me 'at kung may mangyari diyan,
mananagot ka sa akin.'
Q You said you were brought and dragged inside the
room by the accused, can you demonstrate how
you were dragged by the accused?
A He was holding my arms telling me to enter the
room but I answered him I do not want to enter
the room but he pulled and dragged me until I
was able to enter the room.
Q Inside the room, what did the accused do to you?
A Inside the room he ordered me to undress myself
and I answered I do not want, he was forcing me,
I was fighting him so finally I removed my clothes
against my will.
Q You said the accused was forcing you to remove
your clothes, how was he forcing you?
A He was pushing me sir while I was moving
backwards and then he slapped me and he also
told me 'Kung hindi ka papayag, papatayin kita.'
Q How many times were you slapped by the
accused?
A Three times sir.
Q When the accused told you if you will not agree he
will kill you, what did you feel?
A I was afraid sir, 'kaya wala na akong nagawa'.
Q You said finally you undressed yourself, after you
have undressed yourself out of fear what did the
accused do to you?
A He kissed my body.
Q And what portion of your body were you kissed by
the accused?
A My private part sir.
Q What did you do when the accused was kissing
your private part?
A 'Nandidiri ako.'
Q Aside from that what did you do?
A I was fighting him and requested him to stop.
(Witness is crying)
I was requesting him to stop but it seems that he did
not hear me. He just told me to stop crying. I was
just crying then.
Q You said you were fighting him also when he was
kissing your private part, how were you fighting?
A I was boxing him.
(The witness is demonstrating by swaying her hand
closed fist)
Q What did you do after the accused was kissing your
private part and on your part you were trying to
box him?
A He boxed me on my stomach. 'Namimilipit ako sa
sakit.' I said 'Aray ko,' and I told him to stop but
he continued inserting his private part into my
private part.
Q What was his position in relation to you at the time
you said he was inserting his private part into
your private part?
A He was on my top. 'Nakadagan siya.'
Q While the accused was inserting his private part
into your organ, what were you doing?
A I was moving backwards and told him to stop
because it was very painful but he did not stop.
Q And he did not stop despite your pleas?
A 'Noong nilabasan na siya itinigil na niya ang
pagganon sa akin.'
Q Now after he stopped what did he do next?
A He took the towel and wiped yong lumabas sa
kanya and told me to dress myself.
Q After you were told to dress yourself, what did you
do?
A So I dressed up.
Q After you dressed up after you were told by the
accused, what did you do next?
A I told him that I will be going out and he told me
not to go out and wait for him because I do not
know how to open the door which was locked. I
was not able to go out.
Q But finally, were you able to go out of the room?
A No, sir.
Q What happened after you were asked by the
accused to wait for him so you can go out?
A So I waited inside the room and was crying.
Q After you waited for him, what happened next?
A So he opened the door and we went outside. I ran
away from him inside and boarded the jeep and
proceeded to the school. In the school I
continued crying.
Q How about the accused where did he go?
A I do not know sir because I left him inside the
motel, I did not mind him.
Q Tell us why you proceeded to the school?
 A Because I was afraid to go home sir because he
might go to our house because his house is near
our house.
Q In the school what did you do there?
A I only cried.
Q What happened after you said you continued to cry
in the school?
A My classmates were asking me why, I was crying
and answered them 'nothing'. That's my
problem.
Q Why did you not tell your classmates?
A I was afraid.
Q Afraid of him?
A From Tasyo.
Q Why were you afraid of Tasyo?
A Because of his threat." 47
Furthermore, Jennifer's testimony is strongly supported by the
medical findings conducted by the medico-legal
expert 48 three months after the incident. The Medical Report
showed that the victim had old healed lacerations at the five
o'clock and the seven o'clock positions. This finding is
consistent with penile invasion. 49 Where the victim's claim of
rape is corroborated by the physical findings of penetration,
there exists sufficient basis for concluding that sexual
intercourse did take place. 50
Defense of Denial and Alibi
As consistently held by this Court, alibi and denial cannot
prevail over the positive identification of the accused as the
perpetrator of the crime. 51 For the defense of alibi to
prosper, the accused must establish clearly and convincingly
that it was physically impossible for him to have been at the
crime scene when it happened. In the present case, appellant
failed to show, by clear and convincing proof, that it was
physically impossible for him to have been at the loci criminis.
Neither can we accept the theory of appellant that it was
Prescilla Bernardo, his godmother and Marilyn's mother, who
instigated her daughter to file the charges. We reiterate that it
is unnatural for a mother to use her daughter as an engine of
malice, especially if it will subject her offspring to
embarrassment and lifelong stigma. A mother would not
sacrifice the honor of her daughter to give vent to a grudge
that would tarnish the latter's reputation forever. 52
Finally, the trial court erred in ruling that the acts committed
by appellant in Criminal Case No. 6060-98-C were covered
by Articles 266-a and 266-b of the Revised Penal
Code.Republic Act No. 8353 or "The Anti-Rape Law of 1997"
reclassified the crime of rape as a crime against person and
renumbered it from Article 335 to Articles 226-A to 226-B of
the Revised Penal Code. The amendment took effect on
October 22, 1997. 53 On the other hand, the crime charged
herein was committed in February 1996. Hence, appellant can
only be held liable under the old Article 335 54 of the Revised
Penal Code.
Under Article 6 in relation to Article 335 of the Revised Penal
Code, rape is merely attempted when the offender
commences the commission of the crime directly by overt
acts, but does not perform all the acts of execution by reason
of some cause or accident other than his own spontaneous
desistance. The penalty is two (2) degrees lower than the
imposable penalty of reclusion perpetua. Two (2) degrees
lower is prision mayor, the range of which is six (6) years and
one (1) day to twelve (12) years. Applying the Indeterminate
Sentence Law, and in the absence of any mitigating or
aggravating circumstance, the maximum of the penalty to be
imposed upon the accused shall be taken from the medium
period of prision mayor, the range of which is eight (8) years
and one (1) day to ten (10) years; while the minimum shall be
taken from the penalty next lower in degree, which is prision
correccional, the range of which is from six months and one
(1) day to six (6) years.
Likewise, pursuant to prevailing jurisprudence, P50,000 is
awarded to the victim as indemnity ex delicto for each count
of consummated rape, 55 and P30,000 for the attempted
rape. 56 In addition, moral damages in the amount of
P50,000 57 is awarded to her for the consummated rape and
P15,000 58 for the attempted rape.
WHEREFORE, the assailed Joint Judgment is AFFIRMED with the
following MODIFICATIONS:
1. In Criminal Case No. 6060-98-C, appellant is found
GUILTY of attempted rape and is sentenced to an
indeterminate penalty of two (2) years of prision
correccional, as minimum, to ten (10) years
ofprision mayor, as maximum. He is also ordered
to pay Marilyn Bernardo P30,000 as civil
indemnity and P15,000 as moral damages.
2. In Criminal Case No. 6059-98-C, appellant is found
GUILTY of simple rape and sentenced to suffer
the penalty of reclusion perpetua. He is likewise
ordered to pay Marilyn Bernardo P50,000 as civil
indemnity in addition to the P50,000 already
imposed as moral damages.

3. In Criminal Case No. 6061-98-C, appellant is found

GUILTY of simple rape and sentenced to suffer
the penalty of reclusion perpetua. He is also
ordered to pay Jennifer Mendoza P50,000 as civil
indemnity in addition to the P50,000 already
imposed as moral damages. DACTSH
SO ORDERED.