SECOND DIVISION

[G.R. No. L-31922. October 29, 1976.]

THE PEOPLE OF THE PHILIPPINES , plaintiff-appellee, vs. RICARDO

VELASCO Y ABENOJAR , defendant-appellant.

Sol D. Bello for appellant.

Solicitor General Felix Q. Antonio, Assistant Solicitor General Dominador L. Quiroz
and Solicitor Eufracio B. Cosio for appellee.

DECISION

FERNANDO , J : p

This Court has not been hesitant in the choice of words appropriate for
expressing its disapproval of the act of utilizing force to compel a woman to submit to
a man's lust. So it should be, but never was the condemnation more vehement than
when the victim was a young and helpless child of tender years, in which case the law
has wisely seen to it that the mere fact of her being below the statutory age su ces to
a x the stamp of criminality on the deed. 1 For her, it would be a traumatic experience
likely to cast a blight on the years that lie ahead. Equally so for the parents, it brings
untold grief and suffering. As the offended party in this case was only ve years of age
when the offense of rape for which the accused was indicted and convicted took place,
the only question before this Court on appeal is whether there was proof su cient to
establish his guilt beyond reasonable doubt. Precisely because of the sense of pity and
sympathy aroused by the misfortune that befell the poor child, this Court scrutinized
the records much more carefully. The conclusion reached is that the appealed decision
is in conformity with law and that the appellant should be made to expiate for his crime
by serving the sentence of reclusion perpetua. llcd

It is a little unusual to notice that counsel for the appellant explicitly stated that
he was "quoting the pertinent narration of facts of the trial court in its decision of
February 18, 1970, to be [his] statement of facts." 2 Earlier, though, he did assert: "At
most, on the basis of the testimonies of the prosecution witnesses, subjected to the
above tests, the fact of the commission of the crime might have been proven, but
certainly, we submit not the commission of the crime by the accused." 3 The facts as
noted by the trial judge, the Honorable Gregorio T. Lantin, now retired, follow: "It
appears that at about 5:30 in the afternoon of the 2nd day of November, 1967, the
offended party, Estelita Lopez, a child, ve years old, accompanied by her cousin Nenita
Lopez, another child, four years old, were at the North Cemetery, Manila. The defendant,
Ricardo Velasco y Abenojar, called them, gave Nenita a ve-centavo coin and asked her
to buy cigarettes for him. After she left, the accused held Estelita by the hand and
brought her to an alley. Once in a hidden place between the tombs he kissed her on the
lips, took off her panties and placed himself on top of the girl while she was lying down
on the ground face up and tried to insert his sexual organ into that of the victim. The girl
shouted in pain, "Aray, Aray." Arsenio Perez, who happened to see the accused holding
the hand of the girl while walking along 24th street in the cemetery as well as when they
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 turned into the alley and who at rst thought that the accused was a relative of the girl,
upon hearing the shouts of the girl and because of the shouts believed that something
bad was being done to the girl, . . . proceeded to the place where the shouts came and
upon standing on top of one of the tombs he saw, a short distance away, (2 tombs
away) the accused on top of the girl, with his pants and drawers lowered down to his
knees, and the dress of the girl raised up and the buttocks of the accused making
upward and downward movements. He tried to seek for help and upon seeing Jose
Castro on the 24th Street told him, 'Mang Pepe, Mang Pepe, the daughter of Mang
Pidiong is being raped' (Ginagahasa ang anak ni Mang Pidiong ). Castro proceeded to
the place pointed by Perez with the latter following him, and while standing on top of a
tomb a short distance away (about 5 tombs away), Castro saw the defendant on top of
the girl. The accused then stood up and raised his pants while the girl rose from the
ground crying. Castro approached the defendant and the girl and asked him what
happened, and he said the girl lost her way and was crying. The girl was bleeding at the
time and he noticed that she even wiped off with her dress the blood on the front part
of her thighs. He held the girl by the hand and led her to 24th street and then called the
accused. Once there in the street, Castro suddenly twisted one of his arms. Several
people came and gave the defendant st blows while Castro was taking him to the
o ce of the North Cemetery and Pedro Zapata was holding the girl and leading her to
the same o ce. A mobile patrol car arrived and the defendant and the girl were taken in
the car to the Reyes Memorial Hospital. Patrolman Matulac of the mobile patrol
indorsed the case to Precinct 2 operatives and one of those who responded and took
over the case was Det. Corporal Jesus P. Senen. The injuries of the defendant were
treated in the hospital. While in the hospital and seated on a wheelchair, the offended
party pointed to him . . .. Detective Corporal Senen testi ed that the defendant verbally
admitted to him while in the hospital that he raped the girl, but that the defendant
appeared to be drunk at the time. After treatment, he was taken by the Precinct 2
operatives to the precinct where the statements of Estelita and Jose Castro were
taken, . . . as well as the statement of Arsenio Perez which was utilized by the defense
on cross-examination of the said witness but did not offer it as exhibit. The defendant
again admitted verbally to Senen in Precinct 2 that he raped the girl but refused to give
a written statement. A Medico Legal examination was conducted in the Medical
Examiner's o ce by Dr. David S. Cabreira at about 8:10 p.m. of November 2, 1967 . . .,
and according to the said report the ndings were, '(1) Fresh laceration of the hymen at
six o'clock position; (2) Vaginal opening is painful and sensitive to touch. Opinion: From
the above ndings on the subject Estelita Lopez, the undersigned nds that she must
have had sexual intercourse recently before this examination.'" 4
Retired Judge Lantin then considered the evidence for the defense. Thus: "In
exculpation, the accused tried to establish that in the afternoon of November 2, 1967,
upon instruction of his mother, he went to the North Cemetery to visit the grave of his
deceased brother Pablo Velasco. Having been in the same cemetery the whole day of
the 1st, selling pansit, gulaman and other foodstuffs together with his parents, sister
and wife and was able to go home only at two o'clock in the early morning of November
2, 1967, he felt tired and rested on a cement bench near one of the tombs smoking a
cigarette. It was in this situation that Estelita approached him crying. He asked her
twice why she was crying, to which no answer was given. He then held her right
shoulder and it was while doing so that all of a sudden four men appeared and without
any question asked, one of them boxed him on the head above the left ear, while the
others participated in boxing him. He was pulled towards the street where more people
came and did the same thing to him. He was held by both hands and taken to the o ce
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 of the cemetery. He fell down to the ground because so many people were giving him
st blows. He was brought to the hospital with his eyes closed because they were
painful, having been hit on several parts of his face. When he opened his eyes be was
already in the Reyes Memorial Hospital. He, however, could not identify any one of those
who mauled him. When asked by the doctor in the hospital what happened, he just said
he did not know anything. No policeman questioned him in the hospital and it was only
when he was brought to Precinct 2 that he was asked questions, but he told the police
investigator that he did not know anything about that which had happened to the child."
5

After considering the evidence both for the prosecution and the defense, the then
Judge Lantin was quite categorical as to the culpability of the accused: "There is no
question that rape was the crime committed, but because of the tender age of the child,
she was only ve years and six months at the time, penetration was impossible due to
the infatile character of the vagina, and, therefore, the crime could only be frustrated
rape (People v. Eriñia, 50 Phil. 998). In the case of Eriñia, however, unlike the present
case, the hymen of the victim, who was three years and 11 months old, was not
lacerated. Besides, the Supreme Court gave the accused Eriñia the bene t of the doubt
because there was no conclusive evidence of penetration of the genital organ of the
offended party, referring to the labia and not the vagina. In the present case, however,
considering the anatomical position of the labia majora and minora that these two
external parts of the female sexual organ cover the hymen and the vaginal opening and,
therefore, in order to rupture the hymen and produce the medico-legal nding that the
'vaginal opening was painful and sensitive to touch,' the conclusion is inevitable that the
sexual organ of the accused must have entered and had passed the labia majora and
the labia minora. And pursuant to the case of People v. Oscar, 48 Phil. 527, and People
v. Hernandez, 49 Phil. 980, and the dissenting opinion in the case of People v. Eriñia,
(supra), the crime committed by the accused Ricardo Velasco y Abenojar was
consummated rape." 6
From the above excerpts of the appealed decision, it is readily discernible that
Judge Lantin was true to the tenets of his calling. He was most judicious in his
appraisal of the evidence. The fair-mindedness is quite apparent. The language
employed is most sober. On a matter that could have aroused the deepest antipathy,
considering what was testi ed to, he preserved, as be ts a man on the bench,
calmness and objectivity. Counsel for appellant did try hard to create doubts about the
guilt of the accused, but it was an effort doomed to futility. The medical examination
revealed that the offended party was indeed raped. She was examined on the very night
she was violated. The ndings showed "fresh laceration on the hymen at six o'clock
position," with "the vaginal opening painful and sensitive to touch." 7 Dr. Cabreira, then
sixty-three years of age at the time he testi ed, after twenty-three years in the service,
with more than one thousand medico-legal cases of rape, seduction, and abduction, 8
could a rm: From the above ndings on the subject . . ., the undersigned opines that
she could have had sexual intercourse recently before this examination." The fact is
undisputed that on the very afternoon of November 2, 1967, it was the accused, who,
after giving the cousin of the victim a ve-centavo coin to buy cigarettes for him, led the
latter to an alley, kissed her on the lips, divested her of her intimate garments, and
placed himself on top of her. It could be, as contended by defense counsel, that the
actual act of intercourse was not fully seen by the two eyewitnesses to the occurrence.
It is, however, equally undisputed that the cries from the horri ed onlookers resulted in
the accused being mauled by third parties, who could not repress their sense of
indignation and outrage, no doubt heightened by the sight of the young girl bleeding as
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 a result of what was done to her. Fortunately, there was a mobile patrol car available.
She, as well as the accused, were taken to the Reyes Memorial Hospital. In the police
investigation conducted the same evening, he was identi ed as the author of the
offense by the young girl. The above facts, the records clearly disclose. They have been
demonstrated beyond doubt. That is why, as set forth at the outset, the decision calls
for affirmance. LexLib

1. The rst assignment of error criticized the "evaluation of the facts" by the
trial judge allegedly for ignoring inconsistencies in the testimony of the witnesses for
the prosecution as well as in giving credence to what was testi ed to by the offended
party. Defense counsel would thus have this Court disregard what had been referred to
above as a most painstaking and careful study of the evidence of record by Judge
Lantin. The impact of a principle reiterated time and time again apparently was not felt
by counsel. A reminder from People v. Baylon 9 is in order. Thus: "In essence, appellant,
by the defenses interposed, would have us ignore the well-settled doctrine that the
determination by the trial judge who could weigh and appraise the testimony as to the
facts duly proven is entitled to the highest respect, absent a showing that he ignored or
disregarded circumstances of weight or in uence su cient to call for a different
conclusion. There was a reiteration of that doctrine in the recent case of People v.
Carandang, reference being made to an early formulation thereof in People v. De Otero,
where Justice Malcolm, speaking for the Court, stated: 'After everything is said and
done, we come back, as we invariably do in cases of this nature, to a recognition of the
rule that the Supreme Court will not interfere with the judgment of the trial court in
passing on the credibility of the opposing witnesses, unless there appears in the record
some fact or circumstances of weight and in uence, which has been overlooked or the
signi cance of which has been misinterpreted.'" 1 0 Again, in a prosecution for rape,
People v. Ordonio, 1 1 such a thought was once more given expression: "What clearly
appears then is that once again, reliance on the time-tested doctrine of this Court
according deference of what has been ascertained by the trial judge as to which party
is more deserving of credence would not be inappropriate." 1 2 No merit can therefore
be said to attach to the first assigned error.prcd

2. It could be that the weakness of the argument to support the rst

assigned error is not lost on counsel. That is why in the only other error that should be
discussed, the third, he would nd fault with Judge Lantin "in nding the accused guilty
of consummated rape." There is the clear implication that whatever culpability could be
attached to what was done by the accused, it should not be that of consummated rape.
To make such an assertion requires a certain degree of temerity. He would disregard
completely the nding of an impartial and disinterested witness, one, moreover, who is
an expert, Dr. Cabreira, that the offense of rape was indeed consummated. The lower
court cited the cases of People v. Oscar 1 3 and People v. Hernandez 1 5 that for rape to
be committed, it su ces "that there is proof of entrance of the male organ within the
labia of the pudendum." 1 6 Mention may be made of People v. Canastre, 1 7 People v.
Selfaison, 1 8 People v. Jose, 1 9 People v. Obtinalia, 2 0 People v. Carandang, 2 1 People v.
Royeras. 2 2 People v. Amores, 2 3 and People v Ordonio. 2 4 Moreover, from United-
States v. Flores, 2 5 a 1912 decision, to People v. Yu, 2 6 a 1961 decision, this Court had
duly meted out sentences of conviction for the offense of rape committed against
young girls of tender years below the statutory age. llcd

3. No purpose would be served in taking into consideration the alleged

second assigned error of the trial court in construing as an admission of guilt the failure
on the part of the accused to react or say anything when pointed to by the offended
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 party as the perpetrator of such dastardly act, considering that the evidence of record
fully proved the commission of the crime of rape. Nothing can be more just and legal
then than that he should be held fully accountable.
WHEREFORE, the decision of February 18, 1970 of the lower court nding the
accused Ricardo Velasco y Abenojar guilty of the crime of consummated rape and
sentencing him to reclusion perpetua is hereby affirmed. Costs against appellant.
Barredo, Aquino, Concepcion, Jr., and Martin, JJ., concur.
Antonio, J., took no part.

Footnotes

1. Art. 335 of the Revised Penal Code insofar as relevant reads: "When and how rape
committed. — Rape is committed by having carnal knowledge of a woman under any of
the following circumstances: 1. By using force or intimidation; 2. When the woman is
deprived of reason or otherwise unconscious; and 3. When the woman is under twelve
years of age, even though neither of the circumstances mentioned in the two next
preceding paragraphs shall be present.".

2. Brief for the Accused, 2.

3. Ibid.
4. Ibid, 2-4.

5. Ibid, 4-5.
6. Ibid, Annex A, 4.

7. Exhibit A.
8. T.s.n., Session of May 17, 1968, 4-16.

9. L-35785, May 29, 1974, 57 SCRA 114.

10. Ibid, 118-119. People v. Carandang, L-31012, Aug. 15, 1973, is reported in 52 SCRA 259
while People v. De Otero is reported in 51 Phil. 201 (1927). Cf. People v. Cudalina, L-
34969, April 29, 1975, 63 SCRA 499.
11. L-33829, December 19, 1975, 68 SCRA 397.

12. Ibid, 403.

13. 48 Phil. 527 (1925).

14. 49 Phil. 980 (1925).

15. L-29800, August 31, 1971, 40 SCRA 498.
16. Ibid, 509.

17. 82 Phil. 480 (1948).

18. 110 Phil. 839 (1961).

19. L-28232, February 6, 1971, 37 SCRA 450.

20. L-30190, April 30, 1971, 38 SCRA 651.
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 21. L-31012, August 15, 1973, 52 SCRA 259.

22. L-31886, April 29, 1974, 56 SCRA 666.

23. L-32996, August 21, 1974, 58 SCRA 505.
24. L-33829, December 19, 1975, 68 SCRA 397.

25. 21 Phil. 140.

26. 110 Phil. 793. In between those two decisions, there are the other cases that may be
mentioned: United States v. Tan Teng, 23 Phil. 145 (1912); People v. Blance, 45 Phil. 113
(1923); People v. Oscar, 48 Phil. 517 (1925); People v. Hernandez, 49 Phil. 980 (1925);
People v. Eriñia, 50 Phil. 998 (1927).

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