Republic of the Philippines

Regional Trial Court

Second Judicial Region

Branch 40
Cauayan City, Isabela

PEOPLE OF THE PHILIPPINES,

Plaintiff,

-versus- Criminal Case No. 40-0001-17

For: RAPE by Sexual Assault

in relation to R.A. No. 7610

ORLANDO PORLUCAS

Accused.
x---------------------------------x

JUDGMENT

THE CASE

The Accused was charged for rape under ART. 266-A(2) of the Revised Penal
Code, docketed as Criminal Case No. 40-0001-17, the Information of which reads:

“That on December 27, 2017, at on or about 6 o’clock in the evening,

in Barangay San Fermin, Cauayan City, Isabela, and within the
preliminary jurisdiction of this Honorable Court, the above-named
Respondent dragged the victim AAA, minor, fifteen (15) years of age,

1
 in a grassy area, specifically around Our Lady of Pillar Parish College,
and did and there, willfully, unlawfully, and feloniously fondled the
breasts of the said victim by means of inserting his finger in the
latter’s genitalia, with force and intimidation and against her will and
consent.

The crime is attended by the aggravating circumstance of minority.

CONTRARY TO LAW.”

THE ANTECEDENTS

1. The Information was filed on January 12, 2018 charging Accused ORLANDO
S. PORLUCAS with Rape by Sexual Assault.
2. On January 18, 2018, the Accused was arraigned and pled “Not Guilty”.
After which, on the very same day, the Pre-Trial Conference immediately
took place.
3. During the trial, the Prosecution presented as witnesses:
First, Private Complainant AAA on January 26, 2018;
Second, Dr. Dynavie S. Simon on January 26, 2018;
Third, Edwardson Malangen on February 01, 2018; and
Fourth, P02 YOAN BUENO on February 01, 2018 after which the
Prosecution rested.
4. The Prosecution formally offered the following as Documentary Exhibits,
viz:
a. Medical Examination of AAA conducted by the Dr. Dynavie S. Simon,
City Health Officer of Cauayan City, Isabela;
b. Certificate of Live Birth of AAA;
c. Joint Affidavit of Arrest of the Arresting Officers;
d. Sinumpaang Salaysay of AAA; and
2
 e. Sinumpaang Salaysay of Witness Edwardson Malangen.
5. On its turn, the Defense presented as witness:
First, Accused ORLANDO S. PORLUCAS on February 15, 2018; and
Second, Barangay Sillawit, Cauayan City Captain Bong Law on February 15,
2018. The defense then rested its case.
6. Defense formally offered the following as Documentary Exhibits, viz:
a. Sinumpaang Salaysay of Accused ORLANDO PORLUCAS; and
b. Sinumpaang Salaysay of BONG LAW.

THE PROSECUTION’S VERSION

“On December 26, 2017, at on or about 5 o’clock in the afternoon, AAA

went to Brgy. Sillawit, Cauayan City, Isabela to attend the birthday of her friend,
Edwardson Malangen (Malangen). At around 6 o’clock in the evening, after having
an early dinner at Malangen’s house, AAA informed him that she is going home.
Malangen then escorted AAA outside of their home and contracted Accused
Orlando Porlucas, who rides a tricycle, to drive AAA to her residence in Lucas
Subdivision, San Fermin, to which the Accused agreed.

Accused took the usual Brgy. Sillawit to Lucas Subdivision route, treading
the National Highway and taking the corner of National Highway-Puzon
Subdivision. However, upon reaching a grassy area near Our Lady of Pillar Parish
College, Accused suddenly stopped the tricycle and hurriedly went inside its
sidecar where AAA is sitting down. After which, Accused forcefully pulled AAA out
of the tricycle and dragged her within the density of the grassy area.

At that juncture, AAA made efforts to escape from the Accused, kicking and
biting her but to no avail. Accused punched the left torso of AAA causing her great
pain thus ending her physical struggle. Thereafter, Accused covered the mouth of
AAA preventing her to scream for help during which Accused aggressively fondled
AAA’s breasts and thereafter removed her lower underwear. After which,
3
Accused inserted his finger in AAA’s genitalia and did so repeatedly. Unsatisfied,
Accused tried to take off his jeans however this caused him to briefly release his
hold unto AAA’s mouth given the latter ample opportunity to shout for help.

Coincidentally, during the occurrence of the foregoing incident, two (2)

policemen namely P03 JOHN MICHAEL L. BABAS and P02 YOAN B. BUENO, who
were on board their police vehicle, were conducting patrol along the area.
Hearing a scream for help, the two policemen immediately stopped their vehicle,
in which they saw an abandoned tricycle, and tended to the shout for assistance.
Coursing through the tall grasses, the aforementioned policemen saw Accused
sitting on the hip area of AAA. Seeing such deplorable sight, the policemen called
for the surrender of Accused and caused his apprehension. (Exhibit C)

The Accused and AAA were then taken to the Cauayan City Police Station in
which the former was detained. The latter however was referred to Cauayan City
District Hospital for a Medico-Legal Examination, conducted by City Health Officer
DR. DYNAVIE S. SIMON. The finding of such examination determined that AAA
suffered fresh laceration at 3:00 position and had bruises and hematoma on her
abdomen and chest, respectively. (Exhibit A)

VERSION OF THE DEFENSE

On December 26, 2017, around six fifteen in the evening (6:15PM), Accused
was approached by Malangen to drive AAA in her home in Lucas Subdivision, San
Fermin, Cauayan City, Isabela. Accused agreed to the request of Malangen.

During their travel, Accused noticed AAA acting unusually. When Accused
took the corner of National Highway-Puzon Subdivision, AAA told him to drop her
off there. However, Accused, mindful of his promise to Malangen to drive AAA
home, refused to do so. At that instance, AAA began to scream and threatened
Accused that she will jump off the sidecar if the latter will not stop the same.
4
 The Accused then stopped his tricycle in a grassy area near Our Lady of
Pillar Parish in Barangay San Fermin, Cauayan City to help calm down AAA.
However, AAA ran away through the tall grasses. Running through his fatherly
instincts, Accused followed and chased AAA which he successfully did. Accused
grabbed the arm of AAA to take her back to the tricycle however the latter
refused and tried to take off the grip of the Accused on her hand. A brief struggle
occurred in which AAA screamed and shouted frantically. Eventually, AAA tripped
on a rock causing Accused to fall on top of her.

ISSUES

WHETHER THE PROSECUTION PROVED BEYOND REASONABLE DOUBT THAT

ACCUSED ORLANDO PORLUCAS’ GUILT FOR THE CRIME OF RAPE THROUGH
SEXUAL ASSAULT IN RELATION TO R.A. NO. 7610.

WHETHER THE PENALTY FOR THE CRIME IS TO BE MADE PURSUANT TO ARTICLE

266(B)(2) OF R.A. NO. 8353 OR ARTICLE 5(B) OF R.A. NO. 7610.

THE RULING OF THIS COURT

Accused is Guilty of the crime charged beyond reasonable doubt.

Accused insists that the reason why she fell on top of AAA was because the
latter tripped on a stone causing him to fall on top of her. Further, AAA’s
institution of the charge of rape against him was ill-founded as he had no
intention of committing such a deplorable act to the victim since he has treated
her as his own child and that the area to which the crime occurred is populous
and luminous making it impossible for him to commit rape and as such, he should
be acquitted.
5
 This Court does not agree.

CONSIDER THE FOLLOWING:

FIRST, the testimony of AAA passed the “litmus test of credibility” at the
witness seat at the hearings on January 26, 2018. Guided by “plain common
sense; common observation; common experience; and, human nature”, this Court
finds AAA as a convincing witness. AAA had a compelling story on how she was
sexually assaulted by Porlucas. For expediency, the Presiding Judge of this Court
seated directly across the witness seat to observe AAA’s demeanor. With intense
observation, AAA’s demeanor appeared persuasively “natural, sincere and
consistent with human nature and the normal cause of things.” There is no doubt
that AAA was an honest witness. AAA categorically and positively identified the
Accused in Court as her rapist.

During the hearings, it was evident that AAA was in agony, under obvious
intense suffering and extreme emotional stress when asked to recollect the
events of December 26, 2017. AAA, obviously trembling, was emotional when she
narrated how Accused committed his lustful actuations against her. AAA, most
certainly, was not acting. “It is a matter of judicial cognizance that the crying of
the victim during her testimony is evidence of the credibility of the rape charge.”
(People v. Ramos, 296 SCRA 559 (1998), citing People v. Joya, et al., 227 SCRA 9
(1993).

It bears stressing that testimonies of child victims are given full weight and
credit, for youth and immaturity are badges of truth. In People v. Evina, 453 Phil.
25, 41 (2003); citing People v. Perez, G.R. No. 122764, September 24, 1998, 296
SCRA 17., the Supreme Court aptly held:

6
 “This Court has held time and again that testimonies of rape victims who
are young and immature deserve full credence, considering that no young
woman, especially 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. Youth and
immaturity are generally badges of truth. It is highly improbable that a girl
of tender years, one not yet exposed to the ways of the world, would
impute to any man a crime so serious as rape if what she claims is not
true.”

SECOND, this Court finds the defense of the accused, that the institution of
the charge against him was ill-founded and ill-motivated, as beyond belief.
Alleged motives of resentment or revenge are not uncommon defenses, but such
can never sway this Court from lending full credence to the testimony of AAA who
remained steadfast throughout her testimony. Besides, no woman, much less that
of tender age, would cry rape, allow an examination of her private parts, subject
herself to humiliation, go through the rigors of public trial, and taint her good
name if her claim was not true.

Accused Porlucas’ assertion that she fell over on top of AAA when the latter
tripped on a stone is difficult to appreciate. As testified by AAA and the Arresting
Officers, Porlucas was sitting on top of the hip area of AAA. Even given a thousand
attempts, such a position cannot be achieved when a person falls on another
because the latter tripped on something. Additionally, Porlucas’ assertion that the
place to which the crime allegedly occurred is populous and luminous is evidently
untruthful and deceptive. Contrary to Porlucas’ claim, the place is not populous
and not luminous as there are no residences or establishments near the scene of
the crime within a two hundred meter radius, more or less nor there were
streetlights. This claim is further debunked due to the time of the commission of

7
the crime, at around 6:15PM of the December 26, 2018 to which classes and
activities in the Our Lady of Pillar Parish, the nearest establishment, has
momentarily ceased for the holiday break. Clearly, Porlucas was concocting
defenses to escape his liability - however absurd it may seem.

THIRD, the medico-legal report substantiates the sexual assault suffered by

AAA. The said Report states that AAA suffered bruises and developed hematoma
at her upper left breast substantiates her claim that she resisted and struggled
against the lustful advances of the Accused. Article 266-D of R.A. No. 8353
provides:

"Article 266-D. Presumptions. - Any physical overt act manifesting

resistance against the act of rape in any degree from the offended party, or
where the offended party is so situated as to render her/him incapable of
giving valid consent, may be accepted as evidence in the prosecution of the
acts punished under Article 266-A.

Since the testimony of AAA is consistent with the medical findings, a

presumption is hereby created that a violation of R.A. No. 8353 has been indeed
committed. Accused however failed to overcome such a presumption. Further,
taking into consideration that AAA’s testimony per se passed the litmus test of
credibility, the consistency between such testimony and the medico legal report
makes her more of a formidable witness.

AND FOURTH, this Court finds that the defense of the Accused of denial
must fail over the positive and straightforward testimonies of AAA and the other
witnesses on the incident.

“It is an established jurisprudential rule that denial, being a negative self-

serving defense, cannot prevail over the affirmative allegations of the
8
 victim and her categorical and positive identification of the accused as her
assailant.” (People v. Nazareno, G.R. No. 167756, April 09, 2008, 551 SCRA
16, 42) xxx Denial must be proved by the Accused with clear and convincing
evidence otherwise it cannot prevail over the positive testimony of a
credible witness who testify on positive matters. (People v. Guevarra, G.R.
No. 182192, October 29, 2008, 570 SCRA 288, 306)

THE PENALTY

In this instant case, the prosecution established beyond reasonable doubt

all elements of the crime of rape through sexual assault.

Article 266-B of the RPC imposes the penalty for rape by sexual assault as
follows:

ART. 266-B. Penalties. -

Rape under paragraph 2 of the next preceding article shall be punished by

prision mayor.

xxxx

Reclusion temporal shall also be imposed if the rape is committed with any
of the ten aggravating/qualifying circumstances mentioned in this article.
(Emphasis supplied)

It is clear from Article 266-B that generally the penalty for rape through
sexual assault is prision mayor. If qualifying circumstances have attended the

9
crime and the same have been properly alleged in the information the penalty
imposed would be increased to reclusion temporal.

In this case, the crime committed was rape through sexual assault but
inattentive of any qualifying circumstance provided in R.A. No. 8353(B), Paragraph
2. However it has been established that AAA was less than 18 years of age at the
time of the crime. This calls for the application of R.A. No. 7610, paragraph 5(b)
which reads:

“ARTICLE III. Child Prostitution and Other Sexual Abuse

Section 5. Child Prostitution and Other Sexual Abuse. – Children, whether

male or female, who for money, profit, or any other consideration or due to
the coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion

perpetua shall be imposed upon the following:

xxx

(b) Those who commit the act of sexual intercourse or lascivious

conduct with a child exploited in prostitution or subject to other sexual
abuse…”.

The Implementing Rules and Regulations of Republic Act No. 7610 defines
"lascivious conduct": [T]he intentional touching, either directly or through
clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth, of any person,
10
whether of the same or opposite sex, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic area of a person.

It bears stressing that the Prosecution proved beyond reasonable doubt

that Accused committed the crime of rape by sexual assault by repeatedly
inserting his finger to the genitalia of AAA through the use of force. In People v.
Chingh, G.R. No. 178323, March 16, 2011, 645 SCRA 573, the accused was charged
with rape "for inserting his fingers and afterwards his penis into the private part
of his minor victim”. The Court of Appeals found the accused guilty of two counts
of rape: statutory rape and rape through sexual assault. The Supreme Court
modified the penalty imposed for rape through sexual assault to the penalty
provided in Article III, Section 5(b) of Republic Act No. 7610, as earlier provided.

Considering that AAA was below 18 years of age, and considering further
that the act of the Accused in repeatedly inserting his finger in AAA’s genitalia
undeniably amounted to lascivious conduct, the appropriate imposable penalty
should be that provided in Section 5 (b), Article III of R.A. No. 7610, which is
reclusion temporal in its medium period to reclusion perpetua.”

This Court is mindful to the fact that the accused who commits lascivious
acts, in relation to Section 5 (b), Article III of R.A. No. 7610, suffers the more
severe penalty of reclusion temporal in its medium period than the one who
commits Rape through Sexual Assault, which is merely punishable by prision
mayor. In enacting Republic Act No. 7610, the legislature intended to impose a
higher penalty when the victim is a child. To be sure, it was not the intention of
the framers of R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610
to sexual abuses committed to children. Despite the passage of R.A. No. 8353,
R.A. No. 7610 is still good law, which must be applied when the victims are
children or those "persons below eighteen (18) years of age or those over but are

11
unable to fully take care of themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or mental disability or
condition." (Ricalde v. People, G.R. No. 221002, January 21, 2015).

In this respect, “for Rape through Sexual Assault under paragraph 2, Article
266-A with the attending circumstance of minority thus calling for the application
of Section 5(b) of R.A. No. 7610, Accused is sentenced to suffer the indeterminate
penalty of seventeen (17) years, four (4) months and one (1) day to thirty years.

Consequently, Accused is ordered to pay AAA:

a) P100,000.00 as civil indemnity;

b) P100,000.00 as exemplary damages, plus interest at the rate of six percent
(6%) per annum from date of finality of decision until fully paid. (People v.
Godofredo Comboy y Cronico, G.R. No. 218399, March 02, 2016).

The Accused is entitled to full credit for the number of days of his
preventive detention at the Bureau of Jail Management and Penology in Cauayan
City, Isabela commencing on the date of his commitment thereat on December
26, 2017 until the date of the promulgation of his judgment.

SO ORDERED.

February 28, 2018 at Cauayan City, Isabela.

JOHN MICHAEL L. BABAS

Presiding Judge

(Private Prosecutor)
12