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THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CEILITO ORITA alias "Lito," defendant-appellant.
The accused, Ceilito Orita alias Lito, was charged with the
crime of rape in Criminal Case No. 83-031-B before the
Regional Trial Court, Branch II, Borongan, Eastern Samar. The
information filed in the said case reads as follows (p. 47, Rollo):
The undersigned Second Assistant Provincial Fiscal upon prior
complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:
That on March 20, 1983, at about 1:30 o'clock in the morning
inside a boarding house at Victoria St., Poblacion, Borongan,
Eastern Samar, Philippines, and within the jurisdiction of this
Honorable Court, above named accused with lewd designs and
by the use of a Batangas knife he conveniently provided himself
for the purpose and with threats and intimidation, did, then and
there wilfully, unlawfully and feloniously lay with and
succeeded in having sexual intercourse with Cristina S. Abayan
against her will and without her consent.
Upon being arraigned, the accused entered the plea of not guilty
to the offense charged. After the witnesses for the People
testified and the exhibits were formally offered and admitted,
the prosecution rested its case. Thereafter, the defense opted not
to present any exculpatory evidence and instead filed a Motion
to Dismiss. On August 5, 1985, the trial court rendered its
decision, the dispositive portion of which reads (pp. 5960, Rollo):
WHEREFORE. the Court being morally certain of the guilt of
accused CEILITO ORITA @ LITO, of the crime of Frustrated
Rape (Art. 335, RPC), beyond reasonable doubt, with the
aggravating circumstances of dwelling and nightime (sic) with
no mitigating circumstance to offset the same, and considering
the provisions of the Indeterminate Sentence Law, imposes on
accused an imprisonment of TEN (10) YEARS and ONE (1)
DAY, PRISION MAYOR, as minimum to TWELVE (12)
YEARS PRISION MAYOR, maximum; to indemnify CRISTINA
S. ABAYAN, the amount of Four Thousand (P4,000.00) Pesos,
without subsidiary imprisonment in case of insolvency, and to
pay costs.
Not satisfied with the decision, the accused appealed to the
Court of Appeals. On December 29, 1988, the Court of Appeals
rendered its decision, the dispositive portion of which reads (p.
102, Rollo):
WHEREFORE, the trial court's judgment is hereby MODIFIED,
and the appellant found guilty of the crime of rape, and
consequently, sentenced to suffer imprisonment of reclusion
perpetua and to indemnify the victim in the amount of
P30,000.00.
SO ORDERED.
On January 11, 1989, the Court of Appeals issued a resolution
setting aside its December 29, 1988 decision and forwarded the
case to this Court, considering the provision of Section 9,
paragraph 3 of Batas Pambansa Blg. 129 in conjunction with
Section 17, paragraph 3, subparagraph 1 of the Judiciary Act of
1948.
The antecedent facts as summarized in the People's brief are as
follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman
student at the St. Joseph's College at Borongan, Eastern Samar.
Appellant was a Philippine Constabulary (PC) soldier.

In the early morning of March 20, 1983, complainant arrived at


her boarding house. Her classmates had just brought her home
from a party (p. 44, tsn, May 23, 1984). Shortly after her
classmates had left, she knocked at the door of her boarding
house (p. 5, ibid). All of a sudden, somebody held her and poked
a knife to her neck. She then recognized appellant who was a
frequent visitor of another boarder (pp. 8-9,ibid).
She pleaded with him to release her, but he ordered her to go
upstairs with him. Since the door which led to the first floor was
locked from the inside, appellant forced complainant to use the
back door leading to the second floor (p. 77, ibid). With his left
arm wrapped around her neck and his right hand poking a
"balisong" to her neck, appellant dragged complainant up the
stairs (p. 14, ibid). When they reached the second floor, he
commanded her to look for a room. With the Batangas knife still
poked to her neck, they entered complainant's room.
Upon entering the room, appellant pushed complainant who hit
her head on the wall. With one hand holding the knife, appellant
undressed himself. He then ordered complainant to take off her
clothes. Scared, she took off her T-shirt. Then he pulled off her
bra, pants and panty (p. 20, ibid).
He ordered her to lie down on the floor and then mounted her.
He made her hold his penis and insert it in her vagina. She
followed his order as he continued to poke the knife to her. At
said position, however, appellant could not fully penetrate her.
Only a portion of his penis entered her as she kept on moving
(p. 23, ibid).
Appellant then lay down on his back and commanded her to
mount him. In this position, only a small part again of his penis
was inserted into her vagina. At this stage, appellant had both
his hands flat on the floor. Complainant thought of escaping (p.
20, ibid).
She dashed out to the next room and locked herself in. Appellant
pursued her and climbed the partition. When she saw him inside
the room, she ran to another room. Appellant again chased her.
She fled to another room and jumped out through a window (p.
27, ibid).
Still naked, she darted to the municipal building, which was
about eighteen meters in front of the boarding house, and
knocked on the door. When there was no answer, she ran around
the building and knocked on the back door. When the policemen
who were inside the building opened the door, they found
complainant naked sitting on the stairs crying. Pat. Donceras,
the first policeman to see her, took off his jacket and wrapped it
around her. When they discovered what happened, Pat.
Donceras and two other policemen rushed to the boarding
house. They heard a sound at the second floor and saw
somebody running away. Due to darkness, they failed to
apprehend appellant.
Meanwhile, the policemen brought complainant to the Eastern
Samar Provincial Hospital where she was physically examined.
Dr. Ma. Luisa Abude, the resident physician who examined
complainant, issued a Medical Certificate (Exhibit "A") which
states:
Physical Examination Patient is fairly built, came in with
loose clothing with no under-clothes; appears in state of shock,
per unambulatory.
PE Findings Pertinent Findings only.
Neck- Circumscribed hematoma at Ant. neck.
Breast Well developed, conical in shape with prominent
nipples; linear abrasions below (L) breast.
Back Multiple pinpoint marks.

Extremities Abrasions at (R) and (L) knees.


Vulva No visible abrasions or marks at the perineal area or
over the vulva, errythematous (sic)areas noted surrounding
vaginal orifice, tender, hymen intact; no laceration fresh and old
noted; examining finger can barely enter and with difficulty;
vaginal canal tight; no discharges noted.
As aforementioned, the trial court convicted the accused of
frustrated rape.
In this appeal, the accused assigns the following errors:
1) The trial court erred in disregarding the substantial
inconsistencies in the testimonies of the witnesses; and
2) The trial court erred in declaring that the crime of frustrated
rape was committed by the accused.
The accused assails the testimonies of the victim and Pat.
Donceras because they "show remarkable and vital
inconsistencies and its incredibility amounting to fabrication and
therefore casted doubt to its candor, truth and validity." (p.
33, Rollo)
A close scrutiny of the alleged inconsistencies revealed that they
refer to trivial inconsistencies which are not sufficient to blur or
cast doubt on the witnesses' straightforward attestations. Far
from being badges of fabrication, the inconsistencies in their
testimonies may in fact be justifiably considered as
manifestations of truthfulness on material points. These little
deviations also confirm that the witnesses had not been
rehearsed. The most candid witnesses may make mistakes
sometimes but such honest lapses do not necessarily impair their
intrinsic credibility (People v. Cabato, G.R. No. L-37400, April
15, 1988, 160 SCRA 98). Rather than discredit the testimonies
of the prosecution witnesses, discrepancies on minor details
must be viewed as adding credence and veracity to such
spontaneous testimonies (Aportadera et al. v. Court of Appeals,
et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a
matter of fact, complete uniformity in details would be a strong
indication of untruthfulness and lack of spontaneity (People v.
Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609).
However, one of the alleged inconsistencies deserves a little
discussion which is, the testimony of the victim that the accused
asked her to hold and guide his penis in order to have carnal
knowledge of her. According to the accused, this is strange
because "this is the only case where an aggressor's advances is
being helped-out by the victim in order that there will be a
consumation of the act." (p. 34, Rollo). The allegation would
have been meritorious had the testimony of the victim ended
there. The victim testified further that the accused was holding a
Batangas knife during the aggression. This is a material part of
the victim's testimony which the accused conveniently deleted.
We find no cogent reason to depart from the well-settled rule
that the findings of fact of the trial court on the credibility of
witnesses should be accorded the highest respect because it has
the advantage of observing the demeanor of witnesses and can
discern if a witness is telling the truth (People v. Samson, G.R.
No. 55520, August 25, 1989). We quote with favor the trial
court's finding regarding the testimony of the victim (p
56, Rollo):
As correctly pointed out in the memorandum for the People,
there is not much to be desired as to the sincerity of the offended
party in her testimony before the court. Her answer to every
question profounded (sic), under all circumstances, are plain and
straightforward. To the Court she was a picture of supplication
hungry and thirsty for the immediate vindication of the affront
to her honor. It is inculcated into the mind of the Court that the
accused had wronged her; had traversed illegally her honor.
When a woman testifies that she has been raped, she says in
effect all that is necessary to show that rape was committed

provided her testimony is clear and free from contradiction and


her sincerity and candor, free from suspicion (People v Alfonso,
G.R. No. 72573, August 31, 1987, 153 SCRA 487; People v.
Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280;
People v. Soterol G.R. No. 53498, December 16, 1985, 140
SCRA 400). The victim in this case did not only state that she
was raped but she testified convincingly on how the rape was
committed. The victim's testimony from the time she knocked
on the door of the municipal building up to the time she was
brought to the hospital was corroborated by Pat. Donceras.
Interpreting the findings as indicated in the medical certificate,
Dr. Reinerio Zamora (who was presented in view of the
unavailability of Dr. Abude) declared that the abrasions in the
left and right knees, linear abrasions below the left breast,
multiple pinpoint marks, circumscribed hematoma at the
anterior neck, erythematous area surrounding the vaginal orifice
and tender vulva, are conclusive proof of struggle against force
and violence exerted on the victim (pp. 52-53, Rollo). The trial
court even inspected the boarding house and was fully satisfied
that the narration of the scene of the incident and the conditions
therein is true (p. 54, Rollo):
. . . The staircase leading to the first floor is in such a condition
safe enough to carry the weight of both accused and offended
party without the slightest difficulty, even in the manner as
narrated. The partitions of every room were of strong materials,
securedly nailed, and would not give way even by hastily
scaling the same.
A little insight into human nature is of utmost value in judging
rape complaints (People v. Torio, et al., G.R. No. L-48731,
December 21, 1983, 126 SCRA 265). Thus, the trial court added
(p. 55, Rollo):
. . . And the jump executed by the offended party from that
balcony (opening) to the ground which was correctly estimated
to be less than eight (8) meters, will perhaps occasion no injury
to a frightened individual being pursued. Common experience
will tell us that in occasion of conflagration especially occuring
(sic) in high buildings, many have been saved by jumping from
some considerable heights without being injured. How much
more for a frightened barrio girl, like the offended party to
whom honor appears to be more valuable than her life or limbs?
Besides, the exposure of her private parts when she sought
assistance from authorities, as corroborated, is enough
indication that something not ordinary happened to her unless
she is mentally deranged. Sadly, nothing was adduced to show
that she was out of her mind.
In a similar case (People v. Sambili G.R. No. L-44408,
September 30, 1982, 117 SCRA 312), We ruled that:
What particularly imprints the badge of truth on her story is her
having been rendered entirely naked by appellant and that even
in her nudity, she had to run away from the latter and managed
to gain sanctuary in a house owned by spouses hardly known to
her. All these acts she would not have done nor would these
facts have occurred unless she was sexually assaulted in the
manner she narrated.
The accused questions also the failure of the prosecution to
present other witnesses to corroborate the allegations in the
complaint and the non-presentation of the medico-legal officer
who actually examined the victim. Suffice it to say that it is up
to the prosecution to determine who should be presented as
witnesses on the basis of its own assessment of their necessity
(Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29,
1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for
the non-presentation of the medico-legal officer who actually
examined the victim, the trial court stated that it was by
agreement of the parties that another physician testified
inasmuch as the medico-legal officer was no longer available.
The accused did not bother to contradict this statement.

Summing up, the arguments raised by the accused as regards the


first assignment of error fall flat on its face. Some were not even
substantiated and do not, therefore, merit consideration. We are
convinced that the accused is guilty of rape. However, We
believe the subject matter that really calls for discussion, is
whether or not the accused's conviction for frustrated rape is
proper. The trial court was of the belief that there is no
conclusive evidence of penetration of the genital organ of the
victim and thus convicted the accused of frustrated rape only.
The accused contends that there is no crime of frustrated rape.
The Solicitor General shares the same view.
Article 335 of the Revised Penal Code defines and enumerates
the elements of the crime of rape:
Art. 335. When and how rape is 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.
Carnal knowledge is defined as the act of a man in having
sexual bodily connections with a woman (Black's Law
Dictionary. Fifth Edition, p. 193).
On the other hand, Article 6 of the same Code provides:
Art. 6. Consummated, frustrated, and attempted felonies.
Consummated felonies as well as those which are frustrated and
attempted, are punishable.
A felony is consummated when all the elements necessary for its
execution and accomplishment are present; and it is frustrated
when the offender performs all the acts of execution which
would produce the felony as a consequence but which,
nevertheless, do not produce it by reason of causes independent
of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than his own
spontaneous desistance.
Correlating these two provisions, there is no debate that the
attempted and consummated stages apply to the crime of
rape.1wphi1 Our concern now is whether or not the frustrated
stage applies to the crime of rape.
The requisites of a frustrated felony are: (1) that the offender has
performed all the acts of execution which would produce the
felony and (2) that the felony is not produced due to causes
independent of the perpetrator's will. In the leading case
of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland
set a distinction between attempted and frustrated felonies
which is readily understood even by law students:
. . . A crime cannot be held to be attempted unless the offender,
after beginning the commission of the crime by overt acts, is
prevented, against his will, by some outside cause from
performing all of the acts which should produce the crime. In
other words, to be an attempted crime the purpose of the
offender must be thwarted by a foreign force or agency which
intervenes and compels him to stop prior to the moment when
he has performed all of the acts which should produce the crime
as a consequence, which acts it is his intention to perform. If he

has performed all of the acts which should result in the


consummation of the crime and voluntarily desists from
proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is
that, in the latter, there is no intervention of a foreign or
extraneous cause or agency between the beginning of the
commission of the crime and the moment when all of the acts
have been performed which should result in the consummated
crime; while in the former there is such intervention and the
offender does not arrive at the point of performing all of the acts
which should produce the crime. He is stopped short of that
point by some cause apart from his voluntary desistance.
Clearly, in the crime of rape, from the moment the offender has
carnal knowledge of his victim he actually attains his purpose
and, from that moment also all the essential elements of the
offense have been accomplished.Nothing more is left to be done
by the offender, because he has performed the last act necessary
to produce the crime. Thus, the felony is consummated. In a long
line of cases (People v. Oscar, 48 Phil. 527; People v.
Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886,
April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L32996, August 21, 1974, 58 SCRA 505), We have set the
uniform rule that for the consummation of rape, perfect
penetration is not essential. Any penetration of the female organ
by the male organ is sufficient. Entry of the labia or lips of the
female organ, without rupture of the hymen or laceration of the
vagina is sufficient to warrant conviction. Necessarily, rape is
attempted if there is no penetration of the female organ (People
v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694;
United States v. Garcia: 9 Phil. 434) because not all acts of
execution was performed. The offender merely commenced the
commission of a felony directly by overt acts. Taking into
account the nature, elements and manner of execution of the
crime of rape and jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can ever be
committed.
Of course, We are aware of our earlier pronouncement in the
case of People v. Eria 50 Phil. 998 [1927] where We found the
offender guilty of frustrated rape there being no conclusive
evidence of penetration of the genital organ of the offended
party. However, it appears that this is a "stray" decision
inasmuch as it has not been reiterated in Our subsequent
decisions. Likewise, We are aware of Article 335 of the Revised
Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March
29, 1965) which provides, in its penultimate paragraph, for the
penalty of death when the rape is attempted orfrustrated and a
homicide is committed by reason or on the occasion thereof. We
are of the opinion that this particular provision on frustrated
rape is a dead provision. The Eria case, supra, might have
prompted the law-making body to include the crime of
frustrated rape in the amendments introduced by said laws.
In concluding that there is no conclusive evidence of penetration
of the genital organ of the victim, the trial court relied on the
testimony of Dr. Zamora when he "categorically declared that
the findings in the vulva does not give a concrete disclosure of
penetration. As a matter of fact, he tossed back to the offended
party the answer as to whether or not there actually was
penetration." (p. 53, Rollo) Furthermore, the trial court stated (p.
57, Rollo):
. . . It cannot be insensible to the findings in the medical
certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora
and the equivocal declaration of the latter of uncertainty whether
there was penetration or not. It is true, and the Court is not
oblivious, that conviction for rape could proceed from the
uncorroborated testimony of the offended party and that a
medical certificate is not necessary (People v. Royeras People v.
Orteza, 6 SCRA 109, 113). But the citations the people relied
upon cannot be applicable to the instant case. The testimony of
the offended party is at variance with the medical certificate. As

such, a very disturbing doubt has surfaced in the mind of the


court. It should be stressed that in cases of rape where there is a
positive testimony and a medical certificate, both should in all
respect, compliment each other, for otherwise to rely on the
testimony alone in utter disregard of the manifest variance in the
medical certificate, would be productive of mischievous results.
The alleged variance between the testimony of the victim and
the medical certificate does not exist. On the contrary, it is stated
in the medical certificate that the vulva was erythematous
(which means marked by abnormal redness of the skin due to
capillary congestion, as in inflammation) and tender. It bears
emphasis that Dr. Zamoradid not rule out penetration of the
genital organ of the victim. He merely testified that there was
uncertainty whether or not there was penetration. Anent this
testimony, the victim positively testified that there was
penetration, even if only partially (pp. 302, 304, t.s.n., May 23,
1984):
Q Was the penis inserted on your vagina?
A It entered but only a portion of it.
Q What do you mean when you said comply, or what act do you
referred (sic) to, when you said comply?
A I inserted his penis into my vagina.
Q And was it inserted?
A Yes only a little.
The fact is that in a prosecution for rape, the accused may be
convicted even on the sole basis of the victim's testimony if
credible (People v. Tabago, G.R. No. 69778, November 8, 1988,
167 SCRA 65; People v. Aragona, G.R. No. L-43752,
September 19, 1985, 138 SCRA 569; People v. Taduyo, G.R.
Nos. L-37928-29, September 29, 1987, 154 SCRA 349).
Moreover, Dr. Zamora's testimony is merely corroborative and
is not an indispensable element in the prosecution of this case
(People v. Alfonso, supra).
Although the second assignment of error is meritorious, it will
not tilt the scale in favor of the accused because after a thorough
review of the records, We find the evidence sufficient to prove
his guilt beyond reasonable doubt of the crime of consummated
rape.
Article 335, paragraph 3, of the Revised Penal Code provides
that whenever the crime of rape is committed with the use of a
deadly weapon, the penalty shall be reclusion perpetua to death.
The trial court appreciated the aggravating circumstances of
dwelling and nighttime. Thus, the proper imposable penalty is
death. In view, however, of Article 111, Section 19(1) of the
1987 Constitution and Our ruling in People v. Millora, et al.,
G.R. Nos. L-38968-70, February 9, 1989, that the cited
Constitutional provision did not declare the abolition of the
death penalty but merely prohibits the imposition of the death
penalty, the Court has since February 2, 1987 not imposed the
death penalty whenever it was called for under the Revised
Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February
14, 1990). Reclusion perpetua, being a single indivisible penalty
under Article 335, paragraph 3, is imposed regardless of any
mitigating or aggravating circumstances (in relation to Article
63, paragraph 1, Revised Penal Code; see People v. Arizala,
G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v.
Manzano, G.R. No. L38449, November 25, 1982, 118 SCRA
705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136
SCRA 702).
ACCORDINGLY, the decision of the Regional Trial Court is
hereby MODIFIED. The accused Ceilito Orita is hereby found
guilty beyond reasonable doubt of the crime of rape and
sentenced to reclusion perpetua as well as to indemnify the
victim in the amount of P30,000.00.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
SEMION MANGALINO y LUMANOG, accused-appellant.
This is an appeal from the decision of the Regional Trial Court
of Manila, 1 in which the accused was convicted of statutory
rape under Article 335, paragraph 3 of the Revised Penal
Code, 2 and sentenced to suffer the penalty ofreclusion
perpetua and to pay the offended parties the sum of P50,000.00
as moral damages. The complaint signed by the father of the
victim, Tomas Carlos y Valente states:
That on or about March 7, 1984, in the city of Manila,
Philippines, the said accused did then and there wilfully,
unlawfully and feloniously lie with and have carnal knowledge
of the undersigned complainant's daughter Marichelle, a minor,
6 years of age, against her will and consent.
The following facts are fully supported by the evidence on
record, mainly the testimonies of the victim herself and her
mother, Bernardine, Dr. Roberto V. Garcia, and Staff Sergeant
Mario Oser, as well as the testimonies of the witnesses for the
defense Ramil las Dulce, Linda Ayroso, and the accused
himself.
At about 10 or 11 o'clock in the morning of March 7, 1984,
Marichelle Carlos, 6 years old and a Grade I pupil at the Moises
Salvador Elementary School, Manila, was playing "takbuhan"
alone at the first level (ground floor) of the two-story apartment
of the accused, Semion Mangalino, 53, married to 55-year old
Laura Gasmin, childless, a security guard by occupation, and
residing at 1597-D Honradez Street, Sampaloc, Manila. 3 At the
time of the incident, Laura was in Balayan, Batangas, having
left the day before the incident. The accused and Marichelle's
parents (Tomas and Bernardine Carlos) are neighbors, their
respective rented apartments being almost opposite each other.
During the morning of March 7, 1984, Ramil las Dulce, a 16year old high school student occupying the second floor of the
apartment, for free and free board, too, a grandson of the
accused (his mother, Edita Onadia who lived with him upstairs,
being an adopted daughter of the accused), and Laura's nephew,
Armando Ayroso, were allegedly playing chess 4 in the sala of
the apartment. Ramil, a witness for the defense, testified that he
did not hear or see the accused calling out to Marichelle and
motioning her to go inside his bedroom or "sleeping quarters" at
one end of the sala of the ground floor, opposite the kitchen.
Once inside the bedroom, the accused handed the girl a two
peso bill (P2.00) 5 and told her not to tell anybody about his
calling her to his bedroom. The girl assented. 6
The accused then laid Marichelle down, removed her jogging
pants, and placed them beside her feet. 7 He kissed her and
fondled her infantile breasts. 8 He inserted his finger into the
private part of the victim, 9 and then forcibly and repeatedly
introduced his sexual organ into her undeveloped genitalia, but
in vain. 10
Meanwhile, the victim's mother, Bernardine Carlos, 27, and a
plain housewife, was looking for her daughter, who should be
leaving for school by that time. She was informed by her sister
Agnes, who was living next door, that the adopted daughter of
the accused, Cielito, had told her that Marichelle was in their

apartment. 11 Immediately, Michael, Agnes' four-year old son,


was dispatched to fetch Marichelle.
Hearing the call of Michael, the victim put on her garments, and
on the way home noticed that her jogging pants were wet. Upon
reaching her house, Marichelle narrated to her mother what had
happened, saying, "Si Mang Semion nilagay ang daliri niya sa
pikpik ko," and "yong titi ni Mang Semion nilagay sa pikpik
ko." 12
At about 2:30 that same day, an enraged Bernardine submitted
her daughter to a physical and genital examination, 13 the results
of which National Bureau of Investigation (NBI) Medico Legal
Officer Roberto V. Garcia certified as follows:
No evidence (or) sign of any extragenital physical injury noted
on the body of the subject at the time of examination.
Hymen, intact and its orifice, narrow.
Sign of recent genital trauma, present.
Dr. Garcia opined that the vestibular mucosa contusion could
have been caused by a hard object like an erected penis and such
bruises at such part of the girl's vagina if caused by an erected
penis would be an indication of an unsuccessful penetration.
He discounted the probability of an accident, like bumping at an
edge of a chair, or any blunt object, since there was no contusion
of the labia. 14
The confrontation between the victim and the accused took
place when Staff Sergeant Mario Oser of the Waterfront Unit,
Reaction Strike Force, Philippine Constabulary Metropolitan
Command (P.C. Metrocom), who conducted the initial
investigation, invited the accused to the P.C. Headquarters.
There, Marichelle Identified Semion Mangalino as the man who
had abused her.
The accused vehemently denied having ever abused Marichelle.
He argued that the bruises in the complainant's vestibular
mucosa may have been self-inflicted. Marichelle, who was
constantly running about, might have bumped her pelvis against
a chair, which explained the absence of signs of contusions in
the labia.
Curiously, the young victim candidly testified that she felt no
pain when the accused was allegedly trying to insert his penis
into her vagina. She did not cry in pain nor shout for help when
she was being abused. 15
Before the Court, the appellant assigned four errors in his brief
which he claims the trial court committed, to wit:
ASSIGNMENT OF ERRORS
ERROR I THE TRIAL COURT ERRED IN NOT FINDING
THAT, CONSIDERING THE PLACE, THE TIME, AND THE
PRESENCE OF SO MANY PEOPLE WITHIN THE
IMMEDIATE VICINITY WHERE THE ALLEGED CRIME
WAS COMMITTED, THE ACCUSED COULD NOT HAVE
SEXUALLY ABUSED MARICHELLE G. CARLOS, THE
COMPLAINING WITNESS HEREIN;

ERROR II THE TRIAL COURT ERRED IN NOT FINDING


THAT THE BRUISES THROUGH THE VESTIBULAR
MUCOSA OF THE PRIVATE PART OF MARICHELLE G.
CARLOS IS THE RESULT OF AN ACCIDENT,
CONSIDERING THAT ON MARCH 7,1984, SHE WAS IN
THE GROUND FLOOR OF THE APARTMENT OF HEREIN
ACCUSED
PLAYING

RUNNING
AROUND
"TAKBUHAN";
ERROR III THE TRIAL COURT ERRED IN ORDERING THE
ACCUSED TO PAY THE OFFENDED PARTIES,
MARICHELLE G. CARLOS AND HER PARENTS, TOMAS
CARLOS AND BERNARDINE GANLAC CARLOS, THE
SUM OF P50,000.00 AS AND FOR DAMAGES;
ERROR IV THE TRIAL COURT ERRED IN FINDING THAT
THE ACCUSED IS GUILTY OF THE CHARGE ALLEGED
IN THE INFORMATION, INSTEAD OF ACQUITTING HIM
WITH COSTS DE OFFICIO. 16
The defense vigorously argues against the probability of the
rape having been committed on two points: 1) The commission
of the crime was impossible, taking place as claimed, in broad
daylight, and 2) there were at least eight persons including
the accused and the complainant on the ground floor where
the rape was supposedly consummated.
The commission of the crime, submits the defense, was
impossible, considering that it was allegedly committed at
noontime, which would have readily exposed the act of rape to
anyone glancing in the direction of the place where the suspect
was abusing the victim.
On the second point, it is contended that the rape could not have
been accomplished with so many persons present in the
apartment. As it was, Ramil and Armando were playing chess
near the front door of the apartment. Also, Linda Ayroso, 29,
married to Armando, and a housewife, was washing laundry in
the kitchen. Furthermore, the accused was cooking lunch also in
the kitchen, and so could not have flitted from the kitchen to his
room to execute his evil design without anyone noticing his
absence.
The defense brings to our attention the physical layout of the
apartment of the accused. The place where the alleged sexual
abuse took place was not even a room, he asserts. The apartment
had neither a door nor walls, and what divided the so-called
room from the living room was a wooden folding divider which
was full of holes, "butas-butas." 17
Finally, the accused assails the lower court's slapping of
damages based on the claims of prosecution witnesses of
suffering mental anguish, moral shock, and a "besmirched
reputation." Since he did not commit the offense attributed to
him, the award of P50,000.00 as moral damages is unwarranted.
Consequently, he prays he must be exculpated.
We deny the appeal except the amount of the award of damages
which we reduce to P20,000.00 conformably to prevailing
jurisprudence.
We rule that statutory rape had been committed beyond the
shadow of a doubt.

The gravamen of the offense of statutory rape as provided in


Article 335, paragraph 3 of the Revised Penal Code is the carnal
knowledge of a woman below 12 years of age. 18 Marichelle, a
little over 6 years of age at the time, was raped. Beyond that,
proof of intimidation or force used on her, or lack of it, is
immaterial.
The findings of Dr. Roberto V. Garcia, the NBI Medico Legal
officer, who testified for the People, conclude that rape could
have been perpetrated. To reiterate, he certified the existence of
indications of recent genital trauma.Under normal condition,
the color of the vestibular mucosa is pinkish. The doctor found
the vestibular mucosa of the victim to be dark red. 19 The
forcible attempt of an erected penis to have complete
penetration caused the 3 1/2-centimeter contusion prior to the
hymen. The government doctor further discounted the
probability of an accident, such as bumping the edge of a chair,
or violent contact with a blunt object, as there was no contusion
of the labia.
The penile-vaginal contact without penetration was due to the
one- centimeter diameter opening of Marichelle's hymen.
Usually, the average adult's hymen measures 2.8 to 3
centimeters in diameter, making it compatible to, or easily
penetrable by, an average-size penis. The victim being of a
tender age, the penetration could go only as deep as the
labia. 20 In any case, the Court has consistently held that for rape
to be committed, full penetration is not required. It is enough
that there is proof of entrance of the male organ within the labia
or pudendum of the female organ. 21 Indeed, even the slightest
penetration is sufficient to consummate the crime of rape.
The relationship between the offender and the victim as
neighbors remains unrebutted. This relationship has an
important bearing on the medico-legal finding, because it
explains the absence of visible signs of physical injuries. 22 The
close relationship of Semion Mangalino to Marichelle as a
nearby neighbor of the Carlos family and the degree of
respect that Semion may have had in Marichelle's life, helps
explain why physical force was not employed. The mere size of
the accused, a robust security guard, and 163 centimeters (five
feet and four inches) in height, could have easily immobilized
the victim who was at that time only one hundred eight
centimeters tall and weighing 31.818 kilos (70 lbs.)
The attempt to discredit the prosecution's version as shown by
the fact that Marichelle did not cry out or struggle against her
attacker deserves scant consideration. The absence of hymenal
laceration adequately explains why Marichelle did not feel any
pain during the attempted sexual intercourse. Why would she
struggle, when she did not even know that her chastity was
being violated? As her mother testified, it was only upon
realizing that she had been defiled did her daughter cry. From
then on, she became "matatakutin' and "hindi na kumakain", she
became nervous and had no appetite for food symptoms of a
state of anguish.

The simplicity of the testimony of Marichelle convinces us that


she was telling the truth about her having been sexually abused.
q (Asst. Fiscal Mercedes C. Salvania) Now, while you were
playing will you tell this Honorable court where did you go after
that?
Witness (Marichelle)
a While I was playing Mang Simeon called me madam.
Court
q Why, were you playing alone?
Witness
a Yes, your Honor.
Fiscal Salvania
q What were you playing?
Witness
a I was running around "takbuhan" madam.
Court
q Were you running outside or inside the house of the accused
Witness
a Inside the house of Semion Mangalino, your Honor.
Fiscal Salvania
q While you were playing inside the house of Semion
Mangalino he called for you?
Witness
a Yes, madam.
q Why did he called (sic) for you?
Witness
a He called me and told me to go to his bedroom madam.
Fiscal Salvania
q When you were asked to go to his bedroom, did he give you
anything?
Witness

a Yes madam.
q What did he give to you?
a He gave me P2.00, madam.
Court
q Did you accept that P2.00?
Witness
a Yes, your Honor.
Fiscal Salvania
q When you were asked to go inside the higaan of Semion
Mangalino, did you go?
Witness
a Yes, madam.
q Now, when you went inside the higaan, what did he do to
you?
a He inserted one of his fingers in my private part madam.
Fiscal Salvania
q You stated that you were wearing jogging pant?
Witness
a Yes, madam.
q What happened to your jogging pant?
a He first removed my jogging pant, madam.
q After removing your jogging pant, did he removed (sic)
anything in his clothes?
a He did not removed (sic) anything in his clothes madam.
Court
q Beside the jogging pant you are (sic) wearing, were you also
wearing a panty?
Witness
a Yes, your Honor.
Fiscal Salvania
q What happen(ed) to your panty, did he remove?
Witness
a He also removed my panty madam.
Fiscal Salvania
q What did he do with his finger?
Court
She said he inserted.
q Was one of the fingers of the accused inserted in your private
part?
Witness
a Yes, your Honor.
q What did he do?
a He kissed me your Honor.
q Where did he kissed (sic) you?
a In my breast your Honor.
Fiscal Salvania
q Did he remove your T-shirt?
Witness
a No madam.
xxx xxx xxx
Court
q Did Semion Mangalino removed (sic) his pant?
Witness
a He did not removed (sic) his pant your Honor.
xxx xxx xxx
q Do you know what is penis?
a Yes, your Honor.
q Did the accused put-out his penis while he was inserting his
finger in your private part and kissing you in the breast?
a He put-out his penis while he was kissing and his one fingers
(sic) inserted in my private part, your Honor.
q What did he do with his penis?
a He is inserting his penis in my private part, your Honor.
Court
q Was the accused able to insert his penis into your private part?
Witness
a He was not able, your Honor.
xxx xxx xxx
q How do you feel or did you feel pain while the accused was
trying to insert his penis into your private part?
Witness
a I did not feel anything, your Honor.
q Did you feel pain?
a I did not feel anything painful, your Honor.
q Did you saw (sic) the penis of Semion Mangalino?

a Yes, your Honor.


q What was your position when Semion Mangalino was trying
to insert his penis into your private part?
Witness
a I was lying down, your Honor.
Court
q Who put you lay (sic) down, was it yourself or what?
Witness
a Semion Mangalino, your Honor.
q Did you not cry?
a I did not cry, your Honor.
q Did you shout?
a I did not shout, your Honor.
q Why, were there persons inside the house while Semion
Mangalino was doing all these things to you?
a There were no other persons except myself and Semion
Mangalino your Honor. 23

Marichelle was a Grade I pupil when she was violated. She was
in Grade II when she took the witness stand. In view of her very
tender age and her little formal schooling, it is inconceivable for
Marichelle to concoct a serious charge of rape, and to narrate, in
unhesitating and simple terms, that she had been asked by the
offender to go inside the room; that she was laid down after the
accused had given her P2.00; that he removed her jogging pants
and panty; that the accused kissed her and caressed her breasts,
that "Mang Semion" inserted a finger into her genital, and later
his sexual organ. At age 6, Marichelle would have been one of
those "babes and sucklings" from whose mouths words of praise
should have been perfected, but alas, she was instead compelled
to relate in the presence of people, some of them complete
strangers, in the police precinct and in court, her tragic story.
The heart of the matter is the violation of a child's incapacity to
discern evil from good. As the behavior of the victim towards
the accused during the commission of the crime and her
testimony before police officers and in the court indicate, she
had no awareness of the wrongfulness of the action of the
accused who was old enough to be her grandfather. Her
willingness to lie down on and accept the P2.00 given her by the
accused, whom she looked up to as an elder person, a neighbor,
and a friend of her family, indicate not naivete, but the absolute
trust and confidence of the very young in an older person. She
was incapable of reading malice or evil in his intentions. It is
likely that it was only when she saw how distraught her mother
was at her telling of her story and the flurry of police and
judicial activity stirred up by her narration that her young and
innocent mind was violently exposed to the reality of the

existence of evil in the hearts of men. The moment of truth,


dawning so violently upon young and innocent minds is
contemptible. The older persons in the community should set
themselves up as models of proper decorum and high moral
purpose for young children; it is they who should guide the
young, teach them, and nurture them in the way of the righteous.
A 53-year-old man who instead corrupts and violates the purity
and dignity of a minor is morally depraved and should be
punished to the limits of the law.
It is even more difficult to conceive of Mrs. Bernardine Carlos
trumping up a charge of the rape of her daughter and subject
herself and her daughter to humiliation, to fear, and anxiety, and
community censure that she and her daughter will have to bear
for the rest of their lives, 24 simply in consideration of
P50,000.00, the amount asked for in moral damages.
The trial court's findings of facts which rely on the credibility of
witnesses are entitled to respect, if not finality. A painstaking
examination and review of the records of the case yield no fact
or circumstance that would have contradicted the findings of the
trial court.
The alleged inconsistencies refer to minor details and do not at
all touch upon the basic aspects of the who, the how, and the
when of the crime committed. Minor discrepancies in the
testimonies of Marichelle and her mother are but natural, and
even enhance their credibility as witnesses because these
discrepancies indicate that the responses given were honest and
unrehearsed. 25 In appreciation of the testimony of the victim,
due regard must be accorded to her tender age.
The contention of the accused that he never left the kitchen is
flawed. The facility of a quick tap to his room can not be
discounted considering that kitchen where he was supposed to
have been cooking was only a few meters away. That the
presence of Ramil and Armando who were allegedly playing
chess in the kitchen made the commission of the crime
impossible, even if were true, falls flat in the face of the game of
chess being one that requires utmost concentration; that being
so, it is logical for both players to be concentrating on the game
when the accused lured Marichelle into the room. We hold that
when Ramil, Armando, and Linda were engrossed in what they
were doing, that the accused surreptitiously enticed Marichelle
into his higaan, and that the short distance between the kitchen
and the "room" a mere distance of 5 to 6 meters is no
obstacle to the satiation of his carnal lusting after the child.
The accused claims it was impossible for him to have raped the
victim in the presence of other people, more so, in a place
without privacy. We do not agree. Rape was in fact committed.
It is quite possible for an experienced man, like the accused, to
consummate rape in just one minute, without attracting the
attention of the people inside the apartment. 26 Marichelle's
complete innocence may have facilitated the perpetration of the
clime, and the divider, although "butas-butas," was sufficient to
conceal the commission of the bestial act.
In several instances, this Court held that rape can be committed
even in places where people congregate: in parks, along the road
side, within school premises, and even inside a house where
there are other occupants. 27The apartment of the accused was
no exception. Lust is no respecter of time or place.

In fine, we hold that the trial court did not commit any
reversible error in finding the accused-appellant guilty beyond
reasonable doubt of the crime of statutory rape.
No amount of money can soothe the pain and anguish suffered
by a victim of rape and her family. Still, we cannot impose the
damages of P50,000.00 on the accused. As stated earlier, we
reduce the amount to P20,000.00.
WHEREFORE, the appealled decision is AFFIRMED with the
MODIFICATION above indicated.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
DELFIN CASTRO y LOZADA, defendant-appellant.
This is an appeal interposed by the accused, Delfin Castro y
Lozada, from the decision* of the Regional Trial Court of Pasay
City, Branch 110, imposing upon him the penalty of reclusion
perpetua for statutory rape defined under Art. 335, paragraph 3
of the Revised Penal Code.
On the witness stand, six (6) year old Diana Rose Castro
narrated how, while playing with a neighbor sometime on 4
October 1986, she was pulled by the accused inside a bathroom,
prevented from going out, and made to stand on the toilet bowl.
Accused is a first cousin of Diana Rose's mother. Kuya Delfin,
as Diana Rose referred to the accused, then put up her clothes,
took off her panty, made her lean on the wall and, despite her
efforts to pull away he inserted his private part into her causing
pain. Then she was told by the accused to go home. At home,
she refused to have her private part washed by her Auntie Alice
because it was hurting and painful. 1
Mrs. Jacinta Castro, Diana's grandmother, testified that on 6
October 1986, in her house at No. 1692, F. Muoz, Tramo,
Pasay City, she was asked by her husband to find out why Diana
was crying. Her testimony follows. 2
COURT:
Q Was there anything unusual that happened on Oct. 6
particularly in your house?
A On Oct. 6 I was downstairs and there was a call by my
husband.
xxx
xxx
xxx
FISCAL:
xxx
xxx
xxx
Q Now, what was the reason why your husband called you?
A He asked me to fine out why my granddaughter does not want
to eat and just keeps on crying.
Q And what did you do wen (sic) your husband told you to see
your granddaughter?
A I went upstairs and found out what was wring (sic) with her
whether she has fever.
Q And what did you find out
A At first she said she was complaining that her private property
was painful and when I investigated I discovered that it swollen
(sic).
Q Then what happened after you found out that the private
property of your granddaughter was swollen?
A I asked her why.
Q (sic). And what did your granddaughter tell you?
A At first she told me that "nasabit sa hiyero."
Q And what did you do after that?
xxx
xxx
xxx
A What I did was to examine her carefully her private part; I
lifted her two (2) legs and I discovered that her private property
was reddened as swollen.
Q Did you ask her again what happened to her private property?
A Yes, sir, she told me that she was invited by her Kuya Delfin
to the bathroom.
Q And what else did she tell you?
A She told me that she was asked by her Kuya to stand on top of
the toilet bowl and he removed her panty and his (sic) Kuya
Delfin also removed his pants.
Q What else did she tell you?
A She told me that his (sic) Kuya Delfin had sexual intercourse
with her.
COURT:
Q Did you ask Diane Castro how Delfin allegedly had sexual
intercourse with her?
A Yes, Your Honor.
Q What did she answer?
A She was standing and she was made to lean on the wall, Your
Honor. . .

Because of Diana's revelation, the grandmother brought her to


the National Bureau of Investigation for examination on 8
October 1986. 3
Dr. Roberto Garcia, the NBI medico-legal, had this explanation:
A Under the single heading of "genital examination" the more
insignificant findings will be the contused or bruised vetibular
(sic) meaning the area inside the genital organ of the subject
person; the hymen of the subject person was noted to be bruised
or contused . . .
Q Now what do you mean when you say that the genital parts
you mentioned were contused or bruised?
A The area was noted to be purplish or red darker than the
normal appearance of the said portion being bruised or contused
it would mean that this particular portion was subject to some
amount of force or it could have come in contact with a hard
object, the contract must have been done with a certain amount
of force.
Q Under No. 2 of the conclusion of this report it reads"signs
of recent genital trauma, present, consistent with the alleged
date of infliction."
Would you explain this?
This witness meant that the appearance of the genital or prior of
those mentioned was seen by this witness which brought about
the trauma and that it has to be recent, meaning it could have
been sustained by the subject person in a matter of days prior to
the date of the examination.
A Now, was the hymen of the subject lacerated?
A No, sir.
Q Now this genital trauma which you said to have been suffered
by the subject from what could this injury or trauman (sic), what
was the cause?
A Any hard object would have produced this bruise or
contusion.
Q Now, this is a case of rape, Doctor, would you venture to state
from what object this could have been inflicted?
A Under the normal course of events injuries of this nature
involving this particular portion of the body of a female or
woman is produced by the insertion of a male organ. 4
xxx
xxx
xxx
A sworn complaint for rape was filed against Delfin Castro y
Lozada. It charged as follows:
That on or about the 4th day of October, 1986 in Pasay City,
Philippines and within the jurisdiction of tills Honorable Court,
the above named accused, Delfin Castro y Lozada, with lewd
designs and taking advantage of his moral ascendancy over the
undersigned complainant who is his niece, did then and there
wilfully, unlawfully and feloniously have sexual intercourse
with or carnal knowledge of the undersigned. 5
Accused pleaded not guilty and posted bail for his provisional
liberty.
Delfin's alibi begins on 3 October 1986 in 1692 Muoz, Pasay
City, where he lives two (2) houses away from
complainant's.1wphi1 At about 12:00 P.M., Diana went to his
house while he was taking a bath. She was crying and went
inside the bathroom. When asked by the accused why, she
replied that while going down the stairs, a dog whose two (2)
hind legs were limping, chased her and so she tripped. The
accused told Diana to go out because their dog might bite her.
He proceeded to dress up and saw the victim playing outside.
In the morning of 4 October 1986, he woke up at about quarter
to seven, 6 left the house at 7:30 7 took a jeep plying the PasayTaft- Luneta route, arrived in school (Adamson University) at
8:15 in the morning. He proceeded to see Dolores Rivera, a
godsister who worked in the treasurer's office of the university
to ask the latter to type a term paper which was due that day.
After submitting the term paper, he treated his godsister to
lunch. Around 1:00 o'clock in the afternoon, he went home.
Mrs. Teresita Castro's testimony dovetails with her son Delfin's
saying that at around 12:30 P.M. on 4 October 1986, he arrived
and ate lunch at home. 8 Mother and son talked of enmity

between Mrs. Jacinta Castro, Diana's grandmother and their


family. This rape case against Delfin is a result allegedly of the
envy of Diana's said grandmother over his (Delfin's) fine
scholastic performance. 9
Delfin further narrated that on or about 8 October 1986, he was
invited
to
the
Pasay
Police
Headquarters
for
questioning.1wphi1 While there, he was asked to undress, was
blindfolded and beaten by around 7 to 10 policemen for about
half an hour and made to admit that he raped Diana. Since he
could no longer stand the torture, he told them that he used his
small finger to touch her private part. 10 After the incident,
Delfin left their house in order to avoid trouble; occasionally he
would visit his parents. 11
Finding the testimony of Diana positive, clear and credible, the
Regional Trial Court disregarded the alibi of the accused and
convicted him. The trial court, inter alia, stated:
. . . The accused's claim that he was, in the morning of October
4, 1986, at Adamson University waiting for his term paper
engenders disbelief. By his evidence, he was enrolled at the
Adamson University for the second semester of school 19861987 classes for which usually start in October. Term papers are
usually submitted at the end of the semester, not at the
beginning of the semester. In any event, Delfin was not shown
that it was physically impossible for him to be at the place of the
incident on October 4, 1986 as, by his evidence, he returned to
his house after noontime, rested for a while, then left and
returned again in the afternoon. His suggestion that Diana's
genital bruises could have resulted from trippling down the
stairs when she was chased by a limping dog is ridiculous. A
dog whose two hind legs are limping chasing her (where did the
dog come from?) while she was going down the stairs? Granted
that were possible or that actually happened, the fall would
cause abrasions, not hymenal contusions. Finally the defense's
insinuation that Diana's grandmother Jacinta who was pictured
to be supercilious and envious was behind the filing of this case
is difficult to believe, there being no concrete proof thereof.
Besides, it would be unthinkable for Jacinta to alienate her
relations with all her in-laws, the Castros, who are staying in
different houses of the same compound, by fabricating a charge
against the accused.
Finally, the accused's flight from his house after the filing of the
present case is not consistent with his professed innocence. He
did not, according to him, have any good relationship with
Diana's grandmother even before October 4, 1986. So what was
he fleeing from? His answer, that he wanted to avoid trouble,
tells it all . . .

female organ. Even the slightest penetration is sufficient to


consummate the crime of rape. 12
Perfect penetration, rupture of the hymen or laceration of the
vagina are not essential for the offense of consummated rape.
Entry, to the least extent, of the labia or lips of the female organ
is sufficient. 13 Diana's remaining a virgin does not negate rape.
Sexual intercourse in a standing position, while perhaps
uncomfortable, is not improbable. The RTC decision explained:
. . . For her account that she was made to stand on the toilet
bowl made it easy for the accused to do the act as she was too
small and their private parts would not align unless she was
elevated to a higher position. The suggestion of the defense
counsel that a finger could have been used is absurd. For if it
were only a finger there would have been no need to let Diana
stand on the toilet bowl.. . . 14
The Solicitor General's brief, in turn, asserts that the position
Diana was forced to take, made it easier for appellant to
accomplish insertion of his organ than if Diana had been made
to lie down. 15
Experience has shown that unfounded charges of rape have
frequently been proffered by women actuated by some sinister,
ulterior or undisclosed motive. Convictions in such cases should
not be sustained without clear and convincing proof of
guilt, 16 considering the gravity of the offense and the penalty it
carries.
On the alleged sinister
engendered by envy, we
grandmother would exact
perpetual humiliation and
granddaughter?

motive of Diana's grandmother


find this incredulous. For, what
vengeance on her enemies at the
disrepute of her six (6) year old

Finally, the issue of credibility. Who among the contending


parties is telling the truth? The prosecution's evidence is simple
and straightforward. Appellant's alibi must fall. Claims of his
scholastic achievements, assuming they are relevant, were
unsubstantiated. His counsel did not even formally offer the
exhibits attesting to his enrollment at Adamson University
where he was supposed to have submitted in the morning of 4
October 1986 a term paper. His credibility is dubious; he was
not able to even identify the topic of his alleged term paper. To
discredit the victim he testified on her alleged propensity to tell
lies. 17 The trial court, however, categorically held:

From the said decision sentencing him to suffer the penalty


of reclusion perpetua and indemnify the victim in the amount of
P20,000.00 by way of damages, the accused appealed to this
Court pointing out the following alleged errors:

While Diana's testimony was in some instances flawed, the flaw


was minor and only with respect to dates.1wphi1She is a young
girl. She sat at the witness stand four times, yet she survived the
rigors of testifying, unwavering in her claim that she was
raped. 18

1. there is no rape because


a. the hymen of the victim was not lacerated.
b. the victim was allegedly standing while the crime was being
committed.
c. the victim is still a virgin.
2. reliance on the conflicting testimony of the victim and not
that of the accused.

Accused-appellant claims he was coerced and tortured by Pasay


policemen to admit the rape, showing to the trial court bodily
signs of said abuse. 19 Aside from his self-serving assertion, the
truth of such allegation was not proven. Besides, this allegedly
coerced admission of guilt cannot affect the prosecution's case
which has been established by other positive evidence pointing
to his guilt beyond reasonable doubt.

A recent decision of this Court in a case of statutory rape


observed that, usually, the average adult's hymen measures 2.8
to 3 centimeters in diameter, making it compatible with, or
easily penetrable by an average size penis. The victim being of
tender age, the penetration of the male organ could go only as
deep as the labia. In any case, for rape to be committed, full
penetration is not required. It is enough that there is proof of
entrance of the male organ within the labia or pudendum of the

Finding no reversible error in the decision subject of this appeal,


we affirm the same in its entirety.
WHEREFORE, the decision is AFFIRMED. Accused-appellant
is sentenced to suffer the penalty of reclusion perpetua and to
indemnify the victim, Diana Rose Castro in the amount of
P30,000.00 in line with prevailing jurisprudence. Costs against
the appellant.

POPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs.
CESAR ATENTO accused-appellant.
Asked how she felt while she was being raped, the complainant
replied: "Masarap." The trial judge believed her but just the
same convicted the accused-appellant. The case is now before
us.
The complainant is Glenda Aringo, who was sixteen years old at
the time of the alleged offense. She is the neighbor of Cesar
Atento, the herein accused-appellant, a 39-year old store-keeper
with a wife and eight children. Her claim is that Atento raped
her five separate times, the first sometime in April 1986.
She says that on that first occasion she went to Atento's store in
Barangay 18, Minoro, Cabagan, in Legazpi City to buy bread.
Her parents were at work and Atento was alone in his house
except for his three-year old daughter. Glenda claims Atento
cajoled her into coming inside the house and then took her
downstairs, where he succeeded in deflowering her. She says her
maiden head ached and bled. Afterwards, he gave her P5.00.
Glenda speaks of four other times when he raped her. It was
later (presumably because her hymen had healed) that she felt
tickled by his manhood and described the act of coitus as
"masarap."1
The girl says she never told anybody about Atento's attacks on
her because he had threatened her life. But she could not
conceal her condition for long and after five months had to
admit she was pregnant. She revealed the accused-appellant as
the father of the foetus in her womb. The child was delivered on
December 27, 1987, and christened Hubert Buendia Aringo.
Atento denies the charge against him, saying it was pure
harassment concocted by a relative of the girl who wanted to
eject him from the land where his house was erected. Insisting
that Glenda was a girl of loose morals, he says he had twice
seen her in sexual congress with a man and that she had once
offered her body to his thirteen year old son for a fee of P5.00.
Glenda's description of the act of coitus as pleasurable would
have destroyed the whole case against Atento but for one
singular significant fact. The girl is a mental retardate.
Ascendo Belmonte, a clinical psychologist at Don Susano
Rodriguez Memorial Mental Hospital, subjected the girl to a
series of intelligence tests, to wit, the Wecslar adult intelligence
scale, revised beta exam, standard progressive matrices, and the
Bender visual motor gestalt test, with the following findings:
Glenda B. Aringo, who was born on June 18, 1970, is INTER
ALIA with an intellectual capacity between the ages of nine (9)
and twelve (12) years. As such, her intellectual functioning is
within the mentally defective level. Her fund of information is
inadequate, her judgment is unsound, her thinking and working
capacity is poor. She is unable to distinguish essential from nonessential details. Her vocabulary is limited. Her capacity for her
perceptual processes is unsatisfactory. She lacks the capacity for
abstracting and synthesizing concepts. However, in the midst of
all these, Glenda was found capable of telling the truth.2
Benita Aringo, Glenda's mother, testified that her daughter
reached only third grade and did not like to continue studying,
preferring to play with children younger than she, even when
she was already pregnant. After delivering her child, she would
often leave its care to Benita, and play marbles with the children
rather than feed her baby. Another relative, Caridad Aringo,
testified that Glenda had the mentality of a 12-year old and was
fond of rubber bands and playing cards.

The Court finds this to be the reason why, while a rape victim
with normal intelligence, would have said that the attack on her
caused her much physical pain and mental agony, Glenda
naively declared that Atento's sexual organ in hers gave her
much pleasure.
It is worth observing that Glenda's child was born on December,
nine months after her rape in April, and that, according to the
trial judge, there was a remarkable resemblance between Atento
and the boy.
Article 335 of the Revised Penal Code provides:
Art. 335. 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.
It has not been clearly established that Atento employed force or
threat against Glenda to make her submit to his lust.
Nevertheless, there is no question that Atento is guilty of rape
upon Glenda under paragraph 2, because the girl was deprived
of reason. Alternatively, he is liable under paragraph 3, because
his victim had the mentality of a girl less than twelve years old
at the time she was raped.
In People v. Atutubo,3 this Court held:
It is not necessary under Article 335 for the culprit to actually
deprive the victim of reason prior to the rape, as by the
administration of drugs or by some other illicit method. Ms
provision also applies to cases where the woman has been
earlier deprived of reason by other causes, as when she is
congenitally retarded or has previously suffered some traumatic
experience that has lowered her mental capacity. In such
situations, the victim is in the same category as a child below 12
years of age for lacking the necessary will to object to the
attacker's lewd intentions.
In People v. Palma,4 where a 14-year old mental retardate was
another rape victim, we held that:
The crime committed by Palma is rape under Article 335(2) of
the Revised Penal Code.1wphi1 Copulation with a woman
known to be mentally incapable of giving even an imperfect
consent is rape. Physical intimidation need not precede sexual
intercourse considering the age, mental abnormality and
deficiency of the complainant.
So also in People v. Sunga,5 where the offended party was 23
years old with the mentality of a child about 8 to 9 years of age:
Because of her mental condition, complainant is incapable of
giving consent to the sexual intercourse. She is in the same class
as a woman deprived of reason or otherwise unconscious.
Appellant therefore committed rape in having sexual intercourse
with her.
In his authoritative work on Criminal Law, Chief Justice Aquino
explains Paragraph 2 as follows.6
. . . in the rape of a woman deprived of reason or unconscious,
the victim has no will. The absence of will determines the
existence of the rape. Such lack of will may exist not only when
the victim is unconscious or totally deprived of reason, but also
when she is suffering some mental deficiency impairing her

reason or free will. In that case, it is not necessary that she


should offer real opposition or constant resistance to the sexual
intercourse. Carnal knowledge of a woman so weak in intellect
as to be incapable of legal consent constitutes rape. Where the
offended woman was feeble-minded, sickly and almost an idiot,
sexual intercourse with her is rape. Her failure to offer
resistance to the act did not mean consent for she was incapable
of giving any rational consent.
The deprivation of reason need not be complete. Mental
abnormality or deficiency is enough. Cohabitation with a feebleminded, idiotic woman is rape.
The trial court, however, held Atento guilty of rape under
Paragraph 3, citing People v. Asturias,7 where it was held:
Assuming that complainant Vilma Ortega voluntarily submitted
herself to the bestial desire of appellant still the crime
committed is rape under paragraph 3 of Article 335 of the
Revised Penal Code. This is so even if the circumstances of
force and intimidation, or of the victim being deprived of reason
or otherwise unconscious are absent. The victim has the
mentality of a child below seven years old. If sexual intercourse
with a victim under twelve years of age is rape, then it should
follow that carnal knowledge with a seventeen-year old girl
whose mental capacity is that of a seven year old child would
constitute rape.
In coming to his conclusion, Judge Gregorio A. Consulta
declared:
. . . Given the low I.Q. of Glenda, it is impossible to believe that
she could have fabricated her charges against the accused. She
lacks the gift of articulation and inventiveness. She could not
even explain with ease the meaning of rape, a term which she
learned in the community. Even with intensive coaching,
assuming that happened, on the witness stand where she was
alone, it would show with her testimony falling into irretrievable
pieces. But that did not happen. She proceeded, though with
much difficulty, with childlike innocence. A smart and
perspicacious person would hesitate to describe to the Court her
sexual experiences as "tickling" and "masarap" for that would
only elicit disdain and laughter. Only a simple-minded artless
child would do it. And Glenda falls within the level of a 9-12
year old child. And Glenda was telling the truth!
There is no doubt that when she submitted herself to the accused
later for subsequent intercourses, she was dominated more by
fear and ignorance than by reason.
In any event, whether under paragraph 2 or under paragraph 3 of
Article 335 of the Revised Penal Code, the accused-appellant
deserves to be punished for the rape of Glenda Azingo.
The trial court found the accused-appellant guilty of rape as
charged, meaning that he raped the victim five times, but we do
not agree that the other four rapes have been conclusively
proven. Otherwise, he would have to be punished for five
separate rapes. Except for this and the civil indemnity, which is
increased from P20,000.00 to P30,000.00, we agree with the
sentence imposing on him the penalty of reclusion perpetua, the
obligation to acknowledge and support Hubert Buendia Aringo
as his own spurious child, and to pay the costs.
WHEREFORE, the appealed judgment is AFFIRMED as above
modified. It is so ordered.

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffappellee,


vs.
JULIAN ERINIA Y VINOLLA, defendant-appellant.
This is an appeal from a judgment of the Court of First Instance
of Manila finding the defendant guilty of the crime of
consummated rape and sentencing him to suffer seventeen
years, four months and one day of reclusion temporal, with the
accessory penalties provided by law and to pay the costs.
The victim of the crime was a child of 3 years and 11 months
old and the evidence is conclusive that the defendant
endeavored to have carnal intercourse with her, but there may be
some doubt whether he succeeded in penetrating the vagina
before being disturbed by the timely intervention of the mother
and the sister of the child. The physician who examined the
genital organ of the child a few hours after the commission of
the crime found a slight inflammation of the exterior parts of the
organ, indicating that an effort had been made to enter the
vagina, but in testifying before the court he expressed doubts as
to whether the entry had been effected. The mother of the child
testified that she found its genital organ covered with a sticky
substance, but that cannot be considered conclusive evidence of
penetration.
It has been suggested that the child was of such tender age that
penetration was impossible; that the crime of rape consequently
was impossible of consummation; and that, therefore, the
offense committed should be treated only as abusos
deshonestos. We do not think so. It is probably true that a
complete penetration was impossible, but such penetration is not
essential to the commission of the crime; it is sufficient if there
is a penetration of the labia. In the case of Kenny vs. State ([Tex.
Crim. App.], 79 S. W., 817; 65 L. R. A., 316) where the
offended party was a child of the age of 3 years and 8 months
the testimony of several physicians was to the effect that her
labia of the privates of a child of that age can be entered by a
man's male organ to the hymen and the defendant was found
guilty of the consummated crime rape.
There being no conclusive evidence of penetration of the genital
organ of the offended party, the defendant is entitled to the
benefit of the doubt and can only be found guilty of frustrated
rape, but in view of the fact that he was living in the house of
the parents of the child as their guest, the aggravating
circumstance of abuse of confidence existed and the penalty
must therefore be imposed in its maximum degree.
The judgment appealed from is modified and the defendantappellant is hereby found guilty of the crime of frustrated rape
and is sentenced to suffer twelve years of prision mayor, with
the accessory penalties prescribed by law, and with the costs in
both instances. So ordered.

PEOPLE
OF
THE
PHILIPPINES, plaintiff,
vs.
PRIMO CAMPUHAN Y BELLO accused.
On 3 April 1990 this Court in People v. Orita 1 finally did away
with frustrated rape 2 and allowed only attempted rape and
consummated rape to remain in our statute books. The instant
case lurks at the threshold of another emasculation of the stages
of execution of rape by considering almost every attempt at
sexual violation of a woman as consummated rape, that is, if the
contrary view were to be adopted. The danger there is that that
concept may send the wrong signal to every roaming lothario,
whenever the opportunity bares itself, to better intrude with
climactic gusto, sans any restraint, since after all any attempted
fornication would be considered consummated rape and
punished as such. A mere strafing of the citadel of
passion would then be considered a deadly fait accompli, which
is absurd.
In Orita we held that rape was consummated from the moment
the offender had carnal knowledge of the victim since by it he
attained his objective. All the elements of the offense were
already present and nothing more was left for the offender to do,
having performed all the acts necessary to produce the crime
and accomplish it. We ruled then that perfect penetration was
not essential; any penetration of the female organ by the male
organ, however slight, was sufficient. The Court further held
that entry of the labia or lips of the female organ, even without
rupture of the hymen or laceration of the vagina, was sufficient
to warrant conviction for consummated rape. We distinguished
consummated rape from attempted rape where there was no
penetration of the female organ because not all acts of execution
were performed as the offender merely commenced the
commission of a felony directly by overt acts. 3 The inference
that may be derived therefrom is that complete or full
penetration of the vagina is not required for rape to be
consummated. Any penetration, in whatever degree, is enough
to raise the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in
rape by requiring entry into the labia or lips of the female organ,
even if there be no rupture of the hymen or laceration of the
vagina, to warrant a conviction for consummated rape. While
the entry of the penis into the lips of the female organ was
considered synonymous with mere touching of the external
genitalia, e.g., labia majora, labia minora, etc., 4 the crucial
doctrinal bottom line is that touching must be inextricably
viewed in light of, in relation to, or as an essential part of, the
process of penile penetration, and not just mere touching in the
ordinary sense. In other words, the touching must be tacked to
the penetration itself. The importance of the requirement of
penetration, however slight, cannot be gainsaid because where
entry into the labia or the lips of the female genitalia has not
been established, the crime committed amounts merely to
attempted rape.
Verily, this should be the indicium of the Court in determining
whether rape has been committed either in its attempted or in its
consummated stage; otherwise, no substantial distinction would
exist between the two, despite the fact that penalty-wise, this
distinction, threadbare as it may seem, irrevocably spells the
difference between life and death for the accused a reclusive
life that is not even perpetua but only temporal on one hand,
and the ultimate extermination of life on the other. And, arguing
on another level, if the case at bar cannot be deemed attempted

but consummated rape, what then would constitute attempted


rape? Must our field of choice be thus limited only to
consummated rape and acts of lasciviousness since attempted
rape would no longer be possible in light of the view of those
who disagree with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty of
statutory rape and sentenced by the court a quo to the extreme
penalty of death, 5 hence this case before us on automatic review
under Art. 335 of the Revised Penal Code as amended by RA
7659. 6
As may be culled from the evidence on record, on 25 April
1996, at around 4 o'clock in the afternoon, Ma. Corazon P.
Pamintuan, mother of four (4)-year old Crysthel Pamintuan,
went down from the second floor of their house to prepare Milo
chocolate drinks for her two (2) children. At the ground floor
she met Primo Campuhan who was then busy filling small
plastic bags with water to be frozen into ice in the freezer
located at the second floor. Primo was a helper of Conrado Plata
Jr., brother of Corazon. As Corazon was busy preparing the
drinks, she heard one of her daughters cry, "Ayo'ko,
ayo'ko!" 7 prompting Corazon to rush upstairs. Thereupon, she
saw Primo Campuhan inside her children's room kneeling
before Crysthel whose pajamas or "jogging pants" and panty
were already removed, while his short pants were down to his
knees.
According to Corazon, Primo was forcing his penis into
Crysthel's vagina. Horrified, she cursed the accused, "P - t - ng
ina mo, anak ko iyan!" and boxed him several times. He evaded
her blows and pulled up his pants. He pushed Corazon aside
when she tried to block his path. Corazon then ran out and
shouted for help thus prompting her brother, a cousin and an
uncle who were living within their compound, to chase the
accused. 8 Seconds later, Primo was apprehended by those who
answered Corazon's call for help. They held the accused at the
back of their compound until they were advised by their
neighbors to call the barangay officials instead of detaining him
for his misdeed. Physical examination of the victim yielded
negative results. No evident sign of extra-genital physical injury
was noted by the medico-legal officer on Crysthel's body as her
hymen was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense.
He maintained his innocence and assailed the charge as a mere
scheme of Crysthel's mother who allegedly harbored ill will
against him for his refusal to run an errand for her. 9 He asserted
that in truth Crysthel was in a playing mood and wanted to ride
on his back when she suddenly pulled him down causing both of
them to fall down on the floor. It was in this fallen position that
Corazon chanced upon them and became hysterical. Corazon
slapped him and accused him of raping her child. He got mad
but restrained himself from hitting back when he realized she
was a woman. Corazon called for help from her brothers to stop
him as he ran down from the second floor.
Vicente, Corazon's brother, timely responded to her call for help
and accosted Primo. Vicente punched him and threatened to kill
him. Upon hearing the threat, Primo immediately ran towards
the house of Conrado Plata but Vicente followed him there.
Primo pleaded for a chance to explain as he reasoned out that
the accusation was not true. But Vicente kicked him instead.
When Primo saw Vicente holding a piece of lead pipe, Primo
raised his hands and turned his back to avoid the blow. At this

moment, the relatives and neighbors of Vicente prevailed upon


him to take Primo to the barangay hall instead, and not to maul
or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial
court on 27 May 1997 found him guilty of statutory rape,
sentenced him to the extreme penalty of death, and ordered him
to pay his victim P50,000.00 for moral damages, P25,000.00 for
exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of
Ma. Corazon Pamintuan. He argues that her narration should not
be given any weight or credence since it was punctured with
implausible statements and improbabilities so inconsistent with
human nature and experience. He claims that it was truly
inconceivable for him to commit the rape considering that
Crysthel's younger sister was also in the room playing while
Corazon was just downstairs preparing Milo drinks for her
daughters. Their presence alone as possible eyewitnesses and
the fact that the episode happened within the family compound
where a call for assistance could easily be heard and responded
to, would have been enough to deter him from committing the
crime. Besides, the door of the room was wide open for anybody
to see what could be taking place inside. Primo insists that it
was almost inconceivable that Corazon could give such a vivid
description of the alleged sexual contact when from where she
stood she could not have possibly seen the alleged touching of
the sexual organs of the accused and his victim. He asserts that
the absence of any external signs of physical injuries or of
penetration of Crysthel's private parts more than bolsters his
innocence.
In convicting the accused, the trial court relied quite heavily on
the testimony of Corazon that she saw Primo with his short
pants down to his knees kneeling before Crysthel whose
pajamas and panty were supposedly "already removed" and that
Primo was "forcing his penis into Crysthel's vagina." The
gravamen of the offense of statutory rape is carnal knowledge of
a woman below twelve (12), as provided in Art. 335, par. (3), of
the Revised Penal Code. Crysthel was only four (4) years old
when sexually molested, thus raising the penalty, from reclusion
perpetua to death, to the single indivisible penalty of death
under RA 7659, Sec. 11, the offended party being below seven
(7) years old. We have said often enough that in concluding that
carnal knowledge took place, full penetration of the vaginal
orifice is not an essential ingredient, nor is the rupture of the
hymen necessary; the mere touching of the external genitalia by
the penis capable of consummating the sexual act is sufficient to
constitute carnal knowledge. 10 But the act of touching should be
understood here as inherently part of the entry of the penis into
the labias of the female organ and not mere touching alone of
the mons pubis or the pudendum.
In People v. De la Pea 11 we clarified that the decisions finding
a case for rape even if the attacker's penis merely touched the
external portions of the female genitalia were made in the
context of the presence or existence of an erect penis capable of
full penetration. Where the accused failed to achieve an
erection, had a limp or flaccid penis, or an oversized penis
which could not fit into the victim's vagina, the Court
nonetheless held that rape was consummated on the basis of the
victim's testimony that the accused repeatedly tried, but in vain,
to insert his penis into her vagina and in all likelihood reached
the labia of her pudendum as the victim felt his organ on the lips
of her vulva, 12 or that the penis of the accused touched the

middle part of her vagina. 13 Thus, 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, as in this case. There must be sufficient and convincing
proof that the penis indeed touched the labias or slid into the
female organ, and not merely stroked the external surface
thereof, for an accused to be convicted of consummated
rape. 14 As the labias, which are required to be "touched" by the
penis, are by their natural situs or location beneath the mons
pubis or the vaginal surface, to touch them with the penis is to
attain some degree of penetration beneath the surface, hence, the
conclusion that touching the labia majora or the labia minora of
the pudendum constitutes consummated rape.
The pudendum or vulva is the collective term for the female
genital organs that are visible in the perineal area,e.g., mons
pubis, labia majora, labia minora, the hymen, the clitoris, the
vaginal orifice, etc. The mons pubis is the rounded eminence
that becomes hairy after puberty, and is instantly visible within
the surface. The next layer is the labia majora or the outer lips of
the female organ composed of the outer convex surface and the
inner surface. The skin of the outer convex surface is covered
with hair follicles and is pigmented, while the inner surface is a
thin skin which does not have any hair but has many sebaceous
glands. Directly beneath the labia majora is the labia
minora. 15 Jurisprudence dictates that the labia majora must be
entered for rape to be consummated, 16 and not merely for the
penis to stroke the surface of the female organ. Thus, a grazing
of the surface of the female organ or touching the mons pubis of
the pudendum is not sufficient to constitute consummated rape.
Absent any showing of the slightest penetration of the female
organ, i.e., touching of either labia of the pudendum by the
penis, there can be no consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness.
Judicial depiction of consummated rape has not been confined
to the oft-quoted "touching of the female organ," 17but has also
progressed into being described as "the introduction of the male
organ into the labia of the pudendum," 18 or "the bombardment
of the drawbridge." 19 But, to our mild, the case at bar merely
constitutes a "shelling of the castle of orgasmic potency," or as
earlier stated, a "strafing of the citadel of passion.
A review of the records clearly discloses that the prosecution
utterly failed to discharge its onus of proving that Primo's penis
was able to penetrate Crysthel's vagina however slight. Even if
we grant arguendo that Corazon witnessed Primo in the act of
sexually molesting her daughter, we seriously doubt the veracity
of her claim that she saw the inter-genital contact between
Primo and Crysthel. When asked what she saw upon entering
her children's room Corazon plunged into saying that she saw
Primo poking his penis on the vagina of Crysthel without
explaining her relative position to them as to enable her to see
clearly and sufficiently, in automotive lingo, the contact point. It
should be recalled that when Corazon chanced upon Primo and
Crysthel, the former was allegedly in a kneeling position, which
Corazon described thus:
Q: How was Primo holding your daughter?
A: (The witness is demonstrating in such a way that the chest of
the accused is pinning down the victim, while his right hand is
holding his penis and his left hand is spreading the legs of the
victim).

It can reasonably be drawn from the foregoing narration that


Primo's kneeling position rendered an unbridled observation
impossible. Not even a vantage point from the side of the
accused and the victim would have provided Corazon an
unobstructed view of Primo's penis supposedly reaching
Crysthel's external genitalia, i.e., labia majora, labia minora,
hymen, clitoris, etc., since the legs and arms of Primo would
have hidden his movements from Corazon's sight, not to
discount the fact that Primo's right hand was allegedly holding
his penis thereby blocking it from Corazon's view. It is the
burden of the prosecution to establish how Corazon could have
seen the sexual contact and to shove her account into the
permissive sphere of credibility. It is not enough that she claims
that she saw what was done to her daughter. It is required that
her claim be properly demonstrated to inspire belief. The
prosecution failed in this respect, thus we cannot conclude
without any taint of serious doubt that inter-genital contact was
at all achieved. To hold otherwise would be to resolve the doubt
in favor of the prosecution but to run roughshod over the
constitutional right of the accused to be presumed innocent.

Antithetically, the possibility of Primo's penis having breached


Crysthel's vagina is belied by the child's own assertion that she
resisted Primo's advances by putting her legs close
together; 24 consequently, she did not feel any intense pain but
just felt "not happy" about what Primo did to her. 25 Thus, she
only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases
where penetration was not fully established, the Court had
anchored its conclusion that rape nevertheless was
consummated on the victim's testimony that she felt pain, or the
medico-legal finding of discoloration in the inner lips of the
vagina, or the labia minora was already gaping with redness, or
the hymenal tags were no longer visible. 26 None was shown in
this case. Although a child's testimony 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. Thus, we have to conclude that even on
the basis of the testimony of Crysthel alone the accused cannot
be held liable for consummated rape; worse, be sentenced to
death.1wphi1

Corazon insists that Primo did not restrain himself from


pursuing his wicked intention despite her timely appearance,
thus giving her the opportunity to fully witness his beastly act.

Lastly, it is pertinent to mention the medico legal officer's


finding in this case that there were no external signs of physical
injuries on complaining witness' body to conclude from a
medical perspective that penetration had taken place. As Dr.
Aurea P. Villena explained, although the absence of complete
penetration of the hymen does not negate the possibility of
contact, she clarified that there was no medical basis to hold that
there was sexual contact between the accused and the victim. 27

We are not persuaded. It is inconsistent with man's instinct of


self-preservation to remain where he is and persist in satisfying
his lust even when he knows fully well that his dastardly acts
have already been discovered or witnessed by no less than the
mother of his victim. For, the normal behavior or reaction of
Primo upon learning of Corazon's presence would have been to
pull his pants up to avoid being caught literally with his pants
down. The interval, although relatively short, provided more
than enough opportunity for Primo not only to desist from but
even to conceal his evil design.
What appears to be the basis of the conviction of the accused
was Crysthel's answer to the question of the court
Q: Did the penis of Primo touch your organ?
A: Yes, sir.
But when asked further whether his penis penetrated her organ,
she readily said, "No." Thus
Q: But did his penis penetrate your organ?
A: No, sir. 20
This testimony alone should dissipate the mist of confusion that
enshrouds the question of whether rape in this case was
consummated. It has foreclosed the possibility of Primo's penis
penetrating her vagina, however slight. Crysthel made a
categorical statement denying penetration, 27 obviously induced
by a question propounded to her who could not have been aware
of the finer distinctions between touching and penetration.
Consequently, it is improper and unfair to attach to this reply of
a four (4)-year old child, whose vocabulary is yet as
underdeveloped as her sex and whose language is bereft of
worldly sophistication, an adult interpretation that because the
penis of the accused touched her organ there was sexual entry.
Nor can it be deduced that in trying to penetrate the victim's
organ the penis of the accused touched the middle portion of her
vagina and entered the labia of her pudendum as the prosecution
failed to establish sufficiently that Primo made efforts to
penetrate Crysthel. 22Corazon did not say, nay, not even hint that
Primo's penis was erect or that he responded with an
erection. 23 On the contrary, Corazon even narrated that Primo
had to hold his penis with his right hand, thus showing that he
had yet to attain an erection to be able to penetrate his victim.

In cases of rape where there is a positive testimony and a


medical certificate, both should in all respects complement each
other; otherwise, to rely on the testimonial evidence alone, in
utter disregard of the manifest variance in the medical
certificate, would be productive of unwarranted or even
mischievous results. It is necessary to carefully ascertain
whether the penis of the accused in reality entered the labial
threshold of the female organ to accurately conclude that rape
was consummated. Failing in this, the thin line that separates
attempted rape from consummated rape will significantly
disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal Code,
rape is attempted when the offender commences the commission
of rape directly by overt acts, and does not perform all the acts
of execution which should produce the crime of rape by reason
of some cause or accident other than his own spontaneous
desistance. All the elements of attempted rape and only of
attempted rape are present in the instant case, hence, the
accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the
imposable penalty of death for the offense charged, which is
statutory rape of a minor below seven (7) years. Two (2) degrees
lower is reclusion temporal, the range of which is twelve (12)
years and one (1) day to twenty (20) 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 reclusion temporal, the range of which is
fourteen (14) years, eight (8) months and (1) day to seventeen
(17) years and four (4) months, while the minimum shall be
taken from the penalty next lower in degree, which is prision
mayor, the range of which is from six (6) years and one (1) day
to twelve (12) years, in any of its periods.

WHEREFORE, the Decision of the court a quo finding accused


PRIMO "SONNY" CAMPUHAN Y BELLO guilty of statutory
rape and sentencing him to death and to pay damages is
MODIFIED. He is instead found guilty of ATTEMPTED RAPE
and sentenced to an indeterminate prison term of eight (8) years
four (4) months and ten (10) days of prision mayor medium as
minimum, to fourteen (14) years ten (10) months and twenty
(20) days ofreclusion temporal medium as maximum. Costs de
oficio.

GLORIA
PILAR
S.
AGUIRRE, petitioner,
vs.
SECRETARY OF THE DEPARTMENT OF JUSTICE,
MICHELINA S. AGUIRRE-OLONDRIZ, PEDRO B.
AGUIRRE, DR. JUVIDO AGATEP and DR. MARISSA B.
PASCUAL, respondents.
In this petition for review on certiorari1 under Rule 45 of the
Rules of Court, as amended, petitioner Gloria Pilar S. Aguirre
(Gloria Aguirre) seeks the reversal of the 21 July 2005
Decision2 and 5 December 2005 Resolution,3 both of the Court
of Appeals in CA-G.R. SP No. 88370, entitled "Gloria Pilar S.
Aguirre v. Secretary of the Department of Justice, Michelina S.
Aguirre-Olondriz, Dr. Juvido Agatep, Dra. Marissa B. Pascual,
Pedro B. Aguirre and John and Jane Does."
The Court of Appeals found no grave abuse of discretion on the
part of the Secretary of the Department of Justice (DOJ) when
the latter issued the twin resolutions dated 11 February
20044 and 12 November 2004,5 respectively, which in turn
affirmed the 8 January 2003 Resolution 6 of the Office of the
City Prosecutor (OCP) of Quezon City.
The Assistant City Prosecutor for the OCP of Quezon City
recommended the dismissal of the criminal complaint, docketed
as I.S. No. 02-12466, for violation of Articles 172 (Falsification
by Private Individuals and Use of Falsified Documents) and 262
(Mutilation), both of the Revised Penal Code, in relation to
Republic Act No. 7610, otherwise known as "Child Abuse,
Exploitation and Discrimination Act," for insufficiency of
evidence.
The case stemmed from a complaint filed by petitioner Gloria
Aguirre against respondents Pedro B. Aguirre (Pedro Aguirre),
Michelina S. Aguirre-Olondriz (Olondriz), Dr. Juvido Agatep
(Dr. Agatep), Dr. Marissa B. Pascual (Dr. Pascual) and several
John/Jane Does for falsification, mutilation and child abuse.
The antecedents of the present petition are:
Laureano "Larry" Aguirre7 used to be a charge of the Heart of
Mary Villa, a child caring agency run by the Good Shepherd
Sisters and licensed by the Department of Social Work and
Development (DSWD). Sometime in 1978, respondent Pedro
Aguirre; the latter's spouse, Lourdes S. Aguirre (Lourdes
Aguirre); and their four daughters, who included petitioner
Gloria Aguirre and respondent Olondriz, came to know Larry,
who was then just over a year old. The Aguirres would have
Larry spend a few days at their home and then return him to the
orphanage thereafter. In June 1980, Larry, then two years and
nine months of age, formally became the ward of respondent
Pedro Aguirre and his spouse Lourdes Aguirre by virtue of
an Affidavit of Consent to Legal Guardianship executed in their
favor by Sister Mary Concepta Bellosillo, Superior of the Heart
of Mary Villa. On 19 June 1986, the Aguirre spouses'
guardianship of Larry was legalized when the Regional Trial
Court (RTC), Branch 3 of Balanga, Bataan, duly appointed them
as joint co-guardians over the person and property of Larry.
As Larry was growing up, the Aguirre spouses and their children
noticed that his developmental milestones were remarkably
delayed. His cognitive and physical growth did not appear
normal in that "at age 3 to 4 years, Larry could only crawl on his
tummy like a frog x x x;"8 he did not utter his first word until he
was three years of age; did not speak in sentences until his sixth
year; and only learned to stand up and walk after he turned five
years old. At age six, the Aguirre spouses first enrolled Larry at
the Colegio de San Agustin, Dasmarias Village, but the child
experienced significant learning difficulties there. In 1989, at
age eleven, Larry was taken to specialists for neurological and
psychological evaluations. The psychological evaluation9 done
on Larry revealed the latter to be suffering from a mild mental

deficiency.10 Consequent thereto, the Aguirre spouses transferred


Larry to St. John Ma. Vianney, an educational institution for
special children.
In November of 2001, respondent Dr. Agatep, a
urologist/surgeon, was approached concerning the intention to
have Larry, then 24 years of age, vasectomized. Prior to
performing the procedure on the intended patient, respondent
Dr. Agatep required that Larry be evaluated by a psychiatrist in
order to confirm and validate whether or not the former could
validly give his consent to the medical procedure on account of
his mental deficiency.
In view of the required psychiatric clearance, Larry was brought
to respondent Dr. Pascual, a psychiatrist, for evaluation. In a
psychiatric report dated 21 January 2002, respondent Dr.
Pascual made the following recommendation:
[T]he responsibility of decision making may be given to his
parent or guardian.11
the full text of which reads
PSYCHIATRY REPORT
21 January 2002
GENERAL DATA
LAUREANO AGUIRRE, 24 years old, male, high school
graduate of St. John [Marie Vianney], was referred for
psychiatric evaluation to determine competency to give consent
for vasectomy.
CLINICAL SUMMARY
Larry was adopted at age 3 from an orphanage and prenatal
history is not known to the adoptive family except that abortion
was attempted. Developmental milestones were noted to be
delayed. He started to walk and speak in single word at around
age 5. He was enrolled in Colegio de San Agustin at age 6
where he showed significant learning difficulties that he had to
repeat 1st and 4th grades. A consult was done in 1989 when he
was 11 years old. Neurological findings and EEG results were
not normal and he was given Tecretol and Encephabol by his
neurologist. Psychological evaluation revealed mild to moderate
mental retardation, special education training was advised and
thus, he was transferred to St. John Marie Vianney. He finished
his elementary and secondary education in the said school. He
was later enrolled in a vocational course at Don Bosco which he
was unable to continue. There has been no reported behavioral
problems in school and he gets along relatively well with his
teachers and some of his classmates.
Larry grew up with a very supportive adoptive family. He is the
youngest in the family of four sisters. Currently, his adoptive
parents are already old and have medical problem and thus, they
could no longer monitor and take care of him like before. His
adoptive mother has Bipolar Mood Disorder and used to
physically maltreat him. A year ago, he had an episode of
dizziness, vomiting and headaches after he was hit by his
adoptive mother. Consult was done in Makati Medical Center
and several tests were done, results of which were consistent
with his developmental problem. There was no evidence of
acute insults. The family subsequently decided that he should
stay with one of his sisters to avoid similar incident and the
possibility that he would retaliate although he has never hurt
anybody. There has been no episode of violent outburst or
aggressive behavior. He would often keep to himself when sad,
angry or frustrated.
He is currently employed in the company of his sister and given
assignment to do some photocopying, usually in the mornings.
He enjoys playing billiards and basketball with his nephews
and, he spends most of his leisure time watching TV and
listening to music. He could perform activities of daily living
without assistance except that he still needs supervision in

taking a bath. He cannot prepare his own meal and never


allowed to go out and run errands alone. He does not have
friends and it is only his adoptive family whom he has
significant relationships. He claims that he once had a girlfriend
when he was in high school who was more like a best friend to
him. He never had sexual relations. He has learned to smoke and
drink alcohol few years ago through his cousins and the drivers.
There is no history of abuse of alcohol or any prohibited
substances.
MEDICAL STATUS EXAMINATION
The applicant was appropriately dressed. He was cooperative
and he had intermittent eye contact. Speech was spontaneous,
soft, and relevant. He responded to questions in single words or
simple sentences. He was anxious specially at the start of the
interview, with full affect appropriate to mood and thought
content. There was no apparent thought or perceptual
disturbance. No suicidal/homicidal thoughts elicited. He was
oriented to time, place and person. He has intact remote and
recent memory. He could do simple calculation. He could write
his name and read simple words. His human figure was
comparable to a 7-8 year old. He demonstrated fair judgment
and poor insight. He had fair impulse control.
PSYCHOLOGICAL TESTS
Psychological tests done on March 6, 1990 (Dr. Lourdes
Ledesma) and on August 4, 2000 (Dr. Ma. Teresa GustiloVillaosor) consistently revealed mild to moderate mental
deficiency.
SIGNIFICANT LABORATORY EXAMS RESULTS
CT scan done 09 January 2001 showed nonspecific right deep
parietal subcortical malacia. No localized mass lesion in the
brain.
MRI done on 10 January 2001 showed bilateral parietal x x x
volume loss, encephalomalacia, gliosis and ulegyria consistent
with sequela of postnatal or neonatal infarcts. Ex-vacuo
dilatation of the atria of lateral ventricles associated thinned
posterior half of the corpus callosum.
ASSESSMENT AND RECOMMENDATION
Axis I None
Axis II Mental Retardation, mild to moderate type
Axis III None
Axis IV None at present
Axis V Current GAF = 50-60
Larry's mental deficiency could be associated with possible
perinatal insults, which is consistent with the neuroimaging
findings. Mental retardation associated with neurological
problems usually has poorer prognosis. Larry is very much
dependent on his family for his needs, adaptive functioning,
direction and in making major life decisions. At his capacity, he
may never understand the nature, the foreseeable risks and
benefits, and consequences of the procedure (vasectomy) that
his family wants for his protection. Thus, the responsibility of
decision making may be given to his parent or guardian.

Marissa
Psychiatrist12

B.

Pascual,

M.D.

Considering the above recommendation, respondent Pedro


Aguirre's written consent was deemed sufficient in order to
proceed with the conduct of the vasectomy. Hence, on 31

January 2002, respondent Dr. Agatep performed a bilateral


vasectomy on Larry.

false statement, mutilated or abused" her common-law brother,


Larry Aguirre. Further, she countered that:

On 11 June 2002, petitioner Gloria Aguirre, respondent Pedro


Aguirre's eldest child, instituted a criminal complaint for the
violation of the Revised Penal Code, particularly Articles 172
and 262, both in relation to Republic Act No. 7610 against
respondents Pedro Aguirre, Olondriz, Dr. Agatep, Dr. Pascual
and several John/Jane Does before the Office of the City
Prosecutor of Quezon City.

3. x x x While I am aware and admit that Larry went through a


vasectomy procedure, there is nothing in the Complaint which
explains how the vasectomy amounts to a mutilation.

The Complaint Affidavit,13 docketed as I.S. No. 02-12466,


contained the following allegations:
2. x x x Dr. Agatep and Dra. Pascual were (sic) medical
practitioners specializing in urology and psychiatry respectively;
while respondent Pedro B. Aguirre is my father; Michelina S.
Aguirre-Olondriz is my sister, and the victim Laureano "Larry"
Aguirre xxx is my common law brother. JOHN and JANE
DOES were the persons who, acting upon the apparent
instructions of respondents Michelina Aguirre-Olondriz and/or
Pedro B. Aguirre, actually scouted, prospected, facilitated,
solicited and/or procured the medical services of respondents
Dra. Pascual and Dr. Agatep vis--vis the intended mutilation
via bilateral vasectomy of my common law brother Larry
Aguirre subject hereof.
xxxx
4. Sometime in March 2002, however, the Heart of Mary Villa
of the Good Shepherd Sisters was furnished a copy of
respondent Dra. Pascual's Psychiatry Report dated 21 January
2004 by the "DSWD," in which my common law brother
"Larry" was falsely and maliciously declared incompetent and
incapable of purportedly giving his own consent to the
MUTILATION VIA BILATERAL VASECTOMY intended to
be performed on him by all the respondents.

xxxx
5. In any case, as I did not perform the vasectomy, I can state
with complete confidence that I did not participate in any way in
the alleged mutilation.
6. Neither did I procure or solicit the services of the physician
who performed the vasectomy, Dr. Juvido Agatep x x x. It was
my father, Pedro Aguirre, Larry's guardian, who obtained his
services. I merely acted upon his instructions and accompanied
my brother to the physician, respondents Dra. Marissa B.
Pascual x x x.
xxxx
10. Neither does the Complaint explain in what manner the
Complainant is authorized or has any standing to declare that
Larry's consent was not obtained. Complainant is not the
guardian or relative of Larry. While she argues that Larry's
consent should have been obtained the Complaint does not
dispute the psychiatrist's findings about Larry's inability to give
consent.
xxxx
13. x x x the Complaint does not even state what alleged
participation was falsified or the portion of the psychiatric report
that allegedly states that someone participated when in fact that
person did not so participate.

xxxx

xxxx

6. Based on the foregoing charade and false pretenses invariably


committed by all of the respondents in conspiracy with each
other, on 31 January 2002, my common law brother Larry
Aguirre, although of legal age but conspiratorially caused to be
declared by respondents to be "mentally deficient" and
incompetent to give consent to his BILATERAL VASECTOMY,
was then intentionally, unlawfully, maliciously, feloniously
and/or criminally placed thereafter under surgery for
MUTILATION VIA "BILATERAL VASECTOMY" x x x,
EVEN WITHOUT ANY AUTHORIZATION ORDER from the
GUARDIANSHIP COURT, nor personal consent of Larry
Aguirre himself.

15. Again, I had no participation in the preparation of the report


of Dr. Pascual x x x.

In addition to the above, the complaint included therein an


allegation that
v. x x x without a PRIOR medical examination, professional
interview of nor verification and consultation with my mother,
Lourdes Sabino-Aguirre, respondent Dra. Pascual baselessly,
fraudulently and with obvious intent to defame and malign her
reputation and honor, and worse, that of our Sabido family,
falsely concluded and diagnosed, via her falsified Psychiatry
Report, that my mother Lourdes Sabido-Aguirre purportedly
suffers from "BIPOLAR MOOD DISORDER" x x x.
To answer petitioner Gloria Aguirre's accusations against them,
respondents Pedro Aguirre, Olondriz, Dr. Agatep and Dr.
Pascual submitted their respective Counter-Affidavits.
In her defense,14 respondent Olondriz denied that she
"prospected, scouted, facilitated, solicited and/or procured any

xxxx
17. x x x the Complaint does not dispute that he (Larry) is
mentally deficient or incompetent to give consent.
xxxx
19. x x x I verified that the effect of a vasectomy operation was
explained to him (Larry) by both respondent doctors.
20. x x x I accompanied Larry and obeyed my father on the
belief that my father continues to be the legal guardian of Larry.
I know of no one else who asserts to be his legal guardian x x
x.15
Alleging the same statement of facts and defenses, respondent
Pedro Aguirre argues against his complicity in the crime of
mutilation as charged and asserts that:
5. In any case, as I did not perform the vasectomy, I can state
with complete confidence that I did not participate in any way in
the alleged mutilation.16
Nevertheless, he maintains that the vasectomy performed on
Larry does not in any way amount to mutilation, as the latter's
reproductive organ is still completely intact.17 In any case,
respondent Pedro Aguirre explains that the procedure performed
is reversible through another procedure called Vasovasostomy,
to wit:

8. I understand that vasectomy is reversible through a procedure


called Vasovasostomy. I can also state with confidence that the
procedure enables men who have undergone a vasectomy to sire
a child. Hence, no permanent damage was caused by the
procedure.
Respondent Pedro Aguirre challenges the charge of falsification
in the complaint, to wit:
14. x x x I did not make it appear that any person participated in
any act or proceeding when that person did not in fact
participate x x x.

In defense against the charge of falsification and mutilation,


respondent Dr. Agatep argued that subject complaint should be
dismissed for the following reasons:
1. The complainant has no legal personality to file this case. As
mentioned above, she is only a common law sister of Larry who
has a legal guardian in the person of Pedro Aguirre, one of the
herein respondents x x x.
2. x x x [t]he allegations in the complaint clearly centers on the
condition of complainant's mother, Lourdes Aguirre, her
reputation, and miserably fails to implicate the degree of
participation of herein respondent. x x x

xxxx
xxxx
16. x x x I had no participation in the preparation of the report of
Dra. Pascual. She arrived at her report independently, using her
own professional judgment x x x.
xxxx
31. What I cannot understand about Petita's Complaint is how
Larry is argued to be legally a child under the definition of one
law but nonetheless and simultaneously argued to be capacitated
to give his consent as fully as an adult.18
Respondent Pedro Aguirre further clarifies that co-guardianship
over Larry had been granted to himself and his wife, Lourdes
Aguirre, way back on 19 June 1986 by the Regional Trial Court,
Branch 3 of Balanga, Bataan. Respondent Pedro Aguirre
contends that being one of the legal guardians, consequently,
parental authority over Larry is vested in him. But assuming for
the sake of argument that Larry does have the capacity to make
the decision concerning his vasectomy, respondent Pedro
Aguirre argues that petitioner Gloria Aguirre has no legal
personality to institute the subject criminal complaint, for only
Larry would have the right to do so.
Just as the two preceding respondents did, respondent Dr.
Agatep also disputed the allegations of facts stated in the
Complaint. Adopting the allegations of his co-respondents
insofar as they were material to the charges against him, he
vehemently denied failing to inform Larry of the intended
procedure. In his counter-statement of facts he averred that:
(b) x x x I scheduled Larry for consultative interview x x x
wherein I painstakingly explained what vasectomy is and the
consequences thereof; but finding signs of mental deficiency, x
x x I advised his relatives and his nurse who accompanied him
to have Larry examined by a psychiatrist who could properly
determine whether or not Larry x x x can really give his consent,
thus I required them to secure first a psychiatric evaluation and
clearance prior to the contemplated procedure.
(c) On January 21, 2002, I was furnished a copy of a psychiatric
report prepared by Dr. Marissa Pascual x x x. In her said report,
Dr. Pascual found Larry to suffer from "mental retardation, mild
to moderate type" and further stated that "at his capacity, he may
never understand the nature, the foreseeable risks and benefits
and consequences of the procedure (vasectomy) x x x, thus the
responsibility of decision making may be given to his parent or
guardian x x x."
(d) x x x I was likewise furnished a copy of an affidavit
executed by Pedro Aguirre stating that he was the legal guardian
of Larry x x x Pedro Aguirre gave his consent to vasectomize
Larry x x x.
(e) Only then, specifically January 31, 2002, vasectomy was
performed with utmost care and diligence.19

(b) Falsification. x x x I strongly aver that this felony does not


apply to me since it clearly gives reference to co-respondent, Dr.
Marissa Pascual's Psychiatry Report, dated January 21, 2002, in
relation with her field of profession, an expert opinion. I do not
have any participation in the preparation of said report, x x x
neither did I utilized (sic) the same in any proceedings to the
damage to another. x x x I also deny using a falsified document
x x x.
(c) Mutilation. x x x Vasectomy does not in anyway equate to
castration and what is touched in vasectomy is not considered an
organ in the context of law and medicine, it is quite remote from
the penis x x x.
(d) Child Abuse. x x x the complaint-affidavit is very vague in
specifying the applicability of said law. It merely avers that
Laureano "Larry" Aguirre is a child, and alleges his father,
Pedro Aguirre, has parental authority over him x x x.20
Similarly, respondent Dr. Pascual denied the criminal charges of
falsification and mutilation imputed to her. She stands by the
contents of the assailed Psychiatric Report, justifying it thus:
x x x My opinion of Larry Aguirre's mental status was based on
my own personal observations, his responses during my
interview of him, the results of the two (2) psychological tests
conducted by clinical psychologists, the results of laboratory
tests, including a CT Scan and MRI, and his personal and family
history which I obtained from his sister, Michelina AguirreOlondriz x x x.
5. x x x the reference in my report concerning Mrs. Lourdes
Aguirre is not a statement of my opinion of Mrs. Aguirre's
mental status, x x x. Rather, it is part of the patient's personal
and family history as conveyed to me by Mrs. Aguirre-Olondriz.
6. x x x An expression of my opinion, especially of an expert
opinion, cannot give rise to a charge for falsification. A contrary
opinion by another expert only means that the experts differ, and
does not necessarily reflect on the truth or falsity of either
opinion x x x.
7. x x x I never stated that I examined Mrs. Aguirre, because I
never did x x x.
8. I had no participation in the surgery performed on Larry
Aguirre except to render an opinion on his capacity to give
informed consent to the vasectomy x x x.
9. Without admitting the merits of the complaint, I submit that
complainants are not the proper persons to subscribe to the same
as they are not the offended party, peace officer or other public
officer charged with the enforcement of the law violated x x x.21

The Assistant City Prosecutor held that the circumstances


attendant to the case did not amount to the crime of falsification.
He held that

On 18 February 2003, petitioner Gloria Aguirre appealed the


foregoing resolution to the Secretary of the DOJ by means of a
Petition for Review.28

[T]he claim of the complainant that the Psychiatric Report was


falsified, because consent was not given by Larry Aguirre to the
vasectomy and/or he was not consulted on said operation does
not constitute falsification. It would have been different if it was
stated in the report that consent was obtained from Larry
Aguirre or that it was written therein that he was consulted on
the vasectomy, because that would mean that it was made to
appear in the report that Larry Aguirre participated in the act or
proceeding by giving his consent or was consulted on the matter
when in truth and in fact, he did not participate. Or if not, the
entry would have been an untruthful statement. But that is not
the case. Precisely (sic) the report was made to determine
whether Larry Aguirre could give his consent to his intended
vasectomy. Be that as it may, the matter of Larry's consent
having obtained or not may nor be an issue after all, because
complainant's (sic) herself alleged that Larry's mental condition
is that of a child, who can not give consent. Based on the
foregoing consideration, no falsification can be established
under the circumstances.22

In a Resolution dated 11 February 2004, Chief State Prosecutor


Jovencito R. Zuo, for the Secretary of the DOJ, dismissed the
petition. In resolving said appeal, the Chief State Prosecutor
held that:

Even the statement in the Psychiatric Report of respondent Dr.


Pascual that Lourdes Aguirre had Bipolar Mood Disorder cannot
be considered falsification since
The report did not state that Lourdes Aguirre was in fact
personally interviewed by respondent Dr. Pascual and that the
latter concluded that Lourdes Aguirre has Bipolar Mood
Disorder. The report merely quoted other sources of information
with respect to the condition of Lourdes Aguirre, in the same
manner that the fact that Lourdes Aguirre was physically
abusing Larry Aguirre was also not of Dra. Pascual personal
knowledge. But the fact that Dra. Pascual cited finding, which is
not of her own personal knowledge in her report does not mean
that she committed falsification in the process. Her sources may
be wrong and may affect the veracity of her report, but for as
long as she has not alleged therein that she personally diagnosed
Lourdes Aguirre, which allegation would not then be true, she
cannot be charged of falsification. Therefore, it goes without
saying that if the author of the report is not guilty, then with
more reason the other respondents are not liable.23
Respecting the charge of mutilation, the Assistant City
Prosecutor also held that the facts alleged did not amount to the
crime of mutilation as defined and penalized under Article 262
of the Revised Penal Code, i.e., "[t]he vasectomy operation did
not in any way deprived (sic) Larry of his reproductive organ,
which is still very much part of his physical self." He
ratiocinated that:
While the operation renders him the inability (sic) to procreate,
the operation is reversible and therefore, cannot be the
permanent damage contemplated under Article 262 of the
Revised Penal Code.24
The Assistant City Prosecutor,25 in a Resolution26 dated 8
January 2003, found no probable cause to hold respondents
Pedro Aguirre, Olondriz, Dr. Agatep and Dr. Pascual liable for
the complaint of falsification and mutilation, more specifically,
the violation of Articles 172 and 262 of the Revised Penal Code,
in relation to Republic Act No. 7610. Accordingly, the Assistant
City Prosecutor recommended the dismissal of petitioner Gloria
Aguirre's complaint for insufficiency of evidence. The
dispositive portion of the resolution reads:
WHEREFORE, it is recommended that the above-entitled case
be dismissed for insufficiency of evidence.27

Under Section 12, in relation to Section 7, of Department


Circular No. 70 dated July 3, 2000, the Secretary of Justice
may, motu proprio, dismiss outright the petition if there is no
showing of any reversible error in the questioned resolution or
finds the same to be patently without merit.
We carefully examined the petition and its attachments and
found no error that would justify a reversal of the assailed
resolution which is in accord with the law and evidenced (sic)
on the matter.29
Petitioner Gloria Aguirre's Motion for Reconsideration was
likewise denied with finality by the DOJ in another Resolution
dated 12 November 2004.
Resolute in her belief, petitioner Gloria Aguirre went to the
Court of Appeals by means of a Petition for Certiorari,
Prohibition and Mandamus under Rule 65 of the Rules of Court,
as amended.
On 21 July 2005, the Court of Appeals promulgated its Decision
dismissing petitioner Gloria Aguirre's recourse for lack of merit.
The fallo of the assailed decision reads:
WHEREFORE, premises considered, the present petition is
hereby DENIED DUE COURSE and accordingly DISMISSED
for lack of merit. Consequently, the assailed Resolutions dated
February 11, 2004 and November 12, 2004 of the Secretary of
Justice in I.S. No. 02-12466 are hereby AFFIRMED.30
Petitioner Gloria Aguirre's motion for reconsideration proved
futile as it was denied by the appellate court in a Resolution
dated 5 December 2005.
Hence, the present petition filed under Rule 45 of the Rules of
Court, as amended, premised on the following arguments:
I. THE COURT OF APPEALS COMMITTED SERIOUS,
GRAVE AND REVERSIBLE ERRORS OF LAW WHEN IT
CONCLUDED, BASED PURPORTEDLY ON THE
INTERNET WHICH RUNS AMUCK WITH OUR SYSTEM
OF THE RULE OF LAW AND THE EVIDENCE ON
RECORD,
THAT
BILATERAL
VASECTOMY
IS
PURPORTEDLY 100% REVERSIBLE BY A FUTURE
MEDICAL PROCEDURE HENCE NOT AMOUNTING TO
MUTILATION, X X X; AND
II. WORSE, THE COURT OF APPEALS COMMITTED
GRAVE, SERIOUS AND REVERSIBLE ERRORS OF LAW
WHEN IT REFUSED TO DIRECT THE INDICTMENT OF
THE PRIVATE RESPONDENTS FOR MUTILATION AND
FALSIFICATION
DESPITE THE
EXISTENCE OF
SUFFICIENT PROBABLE CAUSE THEREFOR X X X.31
The foregoing issues notwithstanding, the more proper issue for
this Court's consideration is, given the facts of the case, whether
or not the Court of Appeals erred in ruling that the DOJ did not
commit grave abuse of discretion amounting to lack or excess of
jurisdiction when the latter affirmed the public prosecutor's
finding of lack of probable cause for respondents Pedro Aguirre,
Olondriz, Dr. Agatep and Dr. Pascual to stand trial for the

criminal complaints of falsification and mutilation in relation to


Republic Act No. 7610.
In ruling that the DOJ did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction, the Court of Appeals
explained that:
Evidently, the controversy lies in the permanency of sterilization
as a result of a vasectomy operation, and the chances of
restoring fertility with a reversal surgery x x x.
We sustain the DOJ in ruling that the bilateral vasectomy
performed on Larry does not constitute mutilation even if
intentionally and purposely done to prevent him from siring a
child.
xxxx
Sterilization is to be distinguished from castration: in the latter
act the reproductive capacity is permanently removed or
damaged.32
It then concluded that:
The matter of legal liability, other than criminal, which private
respondents may have incurred for the alleged absence of a
valid consent to the vasectomy performed on Larry, is certainly
beyond the province of this certiorari petition. Out task is
confined to the issue of whether or not the Secretary of Justice
and the Office of the City Prosecutor of Quezon City committed
grave abuse of discretion in their determining the existence or
absence of probable cause for filing criminal cases
for falsification and mutilation under Articles 172 (2) and 262 of
the Revised Penal Code.33
Petitioner Gloria Aguirre, however, contends that the Court of
Appeals and the DOJ failed to appreciate several important
facts: 1) that bilateral vasectomy conducted on petitioner's
brother, Larry Aguirre, was admitted 34; 2) that the procedure
caused the perpetual destruction of Larry's reproductive organs
of generation or conception;353) that the bilateral vasectomy was
intentional and deliberate to deprive Larry forever of his
reproductive organ and his capacity to procreate; and 4) that
respondents, "in conspiracy with one another, made not only one
but two (2) untruthful statements, and not mere inaccuracies
when they made it appear in the psychiatry report" 36 that a)
Larry's consent was obtained or at the very least that the latter
was informed of the intended vasectomy; and b) that Lourdes
Aguirre was likewise interviewed and evaluated. Paradoxically,
however, petitioner Gloria Aguirre does not in any way state
that she, instead of respondent Pedro Aguirre, has guardianship
over the person of Larry. She only insists that respondents
should have obtained Larry's consent prior to the conduct of the
bilateral vasectomy.
In contrast, the Office of the Solicitor General (OSG), for public
respondent DOJ, argues that "the conduct of preliminary
investigation to determine the existence of probable cause for
the purpose of filing (an) information is the function of the
public prosecutor."37 More importantly, "the element[s] of
castration or mutilation of an organ necessary for generation is
completely absent as he was not deprived of any organ
necessary for reproduction, much less the destruction of such
organ."38
Likewise, in support of the decision of the Court of Appeals,
respondents Pedro Aguirre and Olondriz assert that,
fundamentally, petitioner Gloria Aguirre has no standing to file
the complaint, as she has not shown any injury to her person or
asserted any relationship with Larry other than being his
"common law sister"; further, that she cannot prosecute the
present case, as she has not been authorized by law to file said

complaint, not being the offended party, a peace officer or a


public officer charged with the enforcement of the law.
Accordingly, respondents Pedro Aguirre and Olondriz posit that
they, together with the other respondents Dr. Agatep and Dr.
Pascual, may not be charged with, prosecuted for and ultimately
convicted of: 1) "mutilation x x x since the bilateral vasectomy
conducted on Larry does not involve castration or amputation of
an organ necessary for reproduction as the twin elements of the
crime of mutilation x x x are absent" 39; and 2) "falsification x x
x since the acts allegedly constituting falsification involve
matters of medical opinion and not matters of fact," 40 and that
petitioner Gloria Aguirre failed to prove damage to herself or to
any other person.
Respondent Dr. Agatep, in the same vein, stresses that
vasectomy is not mutilation. He elucidates that vasectomy is
merely the "excision of the vas deferens, the duct in testis which
transport semen"41; that it is the penis and the testis that make up
the male reproductive organ and not the vas deferens; and
additionally argues that for the crime of mutilation to be
accomplished, Article 262 of the Revised Penal Code
necessitates that there be intentional total or partial deprivation
of some essential organ for reproduction. Tubes, seminal ducts,
vas deferens or prostatic urethra not being organs, respondent
Dr. Agatep concludes, therefore, that vasectomy does not
correspond to mutilation.
Anent the charge of falsification of a private document,
respondent Dr. Agatep asseverates that he never took part in
disclosing any information, data or facts as contained in the
contentious Psychiatric Report.
For her part, respondent Dr. Pascual insists that the assailed
Psychiatry Report was the result of her independent exercise of
professional judgment. "Rightly or wrongly, (she) diagnosed
Larry Aguirre to be incapable of giving consent, based on
interviews made by the psychiatrist on Larry Aguirre and
persons who interacted with him."42And supposing that said
report is flawed, it is, at most, an erroneous medical diagnosis.
The petition has no merit.
Probable cause has been defined as the existence of such facts
and circumstances as would excite belief in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that
the person charged was guilty of the crime for which he was
prosecuted.43 The term does not mean "actual and positive
cause" nor does it import absolute certainty.44 It is merely based
on opinion and reasonable belief;45 that is, the belief that the act
or omission complained of constitutes the offense charged. A
finding of probable cause merely binds over the suspect to stand
trial. It is not a pronouncement of guilt.46
The executive department of the government is accountable for
the prosecution of crimes, its principal obligation being the
faithful execution of the laws of the land. A necessary
component of the power to execute the laws is the right to
prosecute their violators,47 the responsibility of which is thrust
upon the DOJ. Hence, the determination of whether or not
probable cause exists to warrant the prosecution in court of an
accused is consigned and entrusted to the DOJ. And by the
nature of his office, a public prosecutor is under no compulsion
to file a particular criminal information where he is not
convinced that he has evidence to prop up the averments
thereof, or that the evidence at hand points to a different
conclusion.
Put simply, public prosecutors under the DOJ have a wide range
of discretion, the discretion of whether, what and whom to
charge, the exercise of which depends on a smorgasbord of
factors
which
are
best
appreciated
by
(public)
prosecutors.48 And this Court has consistently adhered to the
policy of non-interference in the conduct of preliminary

investigations, and to leave to the investigating prosecutor


sufficient latitude of discretion in the determination of what
constitutes sufficient evidence as will establish probable cause
for the filing of an information against the supposed offender.49

Art. 172. Falsification by private individuals and use of


falsified documents. The penalty of prision correccional in its
medium and maximum periods and a fine of not more than
5,000 pesos shall be imposed upon:

But this is not to discount the possibility of the commission of


abuses on the part of the prosecutor. It is entirely possible that
the investigating prosecutor may erroneously exercise the
discretion lodged in him by law. This, however, does not render
his act amenable to correction and annulment by the
extraordinary remedy of certiorari, absent any showing of grave
abuse of discretion amounting to excess of jurisdiction.50

xxxx

Prescinding from the above, the court's duty in an appropriate


case, therefore, is confined to a determination of whether the
assailed executive determination of probable cause was done
without or in excess of jurisdiction resulting from a grave abuse
of discretion. For courts of law to grant the extraordinary writ
of certiorari, so as to justify the reversal of the finding of
whether or not there exists probable cause to file an information,
the one seeking the writ must be able to establish that the
investigating prosecutor exercised his power in an arbitrary and
despotic manner by reason of passion or personal hostility, and
it must be patent and gross as would amount to an evasion or to
a unilateral refusal to perform the duty enjoined or to act in
contemplation of law. Grave abuse of discretion is not
enough.51 Excess of jurisdiction signifies that he had jurisdiction
over the case but has transcended the same or acted without
authority.52
Applying the foregoing disquisition to the present petition, the
reasons of the Assistant City Prosecutor in dismissing the
criminal complaints for falsification and mutilation, as affirmed
by the DOJ, is determinative of whether or not he committed
grave abuse of discretion amounting to lack or excess of
jurisdiction.
In ruling the way he did that no probable cause for
falsification and mutilation exists - the Assistant City Prosecutor
deliberated on the factual and legal milieu of the case. He found
that there was no sufficient evidence to establish a prima
facie case for the crimes complained of as defined and punished
under Articles 172, paragraph 2, and 262 of the Revised Penal
Code in relation to Republic Act No. 7610, respectively.
Concerning the crime of falsification of a private document, the
Assistant City Prosecutor reasoned that the circumstances
attendant to the case did not amount to the crime complained of,
that is, the lack of consent by Larry Aguirre before he was
vasectomized; or the fact that the latter was not consulted. The
lack of the two preceding attendant facts do not in any way
amount to falsification, absent the contention that it was made to
appear in the assailed report that said consent was obtained.
That would have been an untruthful statement. Neither does the
fact that the Psychiatric Report state that Lourdes Aguirre has
Bipolar Mood Disorder by the same token amount to
falsification because said report does not put forward that such
finding arose after an examination of the concerned
patient. Apropos the charge of mutilation, he reasoned that
though the vasectomy rendered Larry unable to procreate, it was
not the permanent damage contemplated under the pertinent
provision of the penal code.
We agree. Grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the DOJ and the Assistant City
Prosecutor was not shown in the present case.
In the present petition, respondents Pedro Aguirre, Olondriz, Dr.
Agatep and Dr. Pascual are charged with violating Articles 172
and 262 of the Revised Penal Code, in relation to Republic Act
No. 7610. Article 172, paragraph 2 of the Revised Penal Code,
defines the crime of falsification of a private document, viz

2. Any person who, to the damage of a third party, or with the


intent to cause such damage, shall in any private document
commit any of the acts of falsification enumerated in the next
preceding article.
Petitioner Gloria Aguirre charges respondents with falsification
of a private document for conspiring with one another in
keeping Larry "in the dark about the foregoing (vasectomy) as
the same was concealed from him by the respondents x x x,"53 as
well as for falsely concluding and diagnosing Lourdes Aguirre
to be suffering from Bipolar Mood Disorder.
A scrutiny, however, of Article 171 of the Revised Penal Code
which defines the acts constitutive of falsification, that is
Art. 171. x x x shall falsify a document by committing any of
the following acts:
1. Counterfeiting or imitating any handwriting, signature, or
rubric;
2. Causing it to appear that persons have participated in any act
or proceeding when they did not in fact so participate;
3. Attributing to persons who have participated in an act or
proceeding statements other than those in fact made by them;
4. Making untruthful statements in a narration of facts;
5. Altering true dates;
6. Making any alteration or intercalation in a genuine document
which changes its meaning;
7. Issuing in an authenticated form a document purporting to be
a copy of an original document when no such original exists, or
including in such copy a statement contrary to, or different
from, that of the genuine original; or
8. Intercalating any instrument or note relative to the issuance
thereof in a protocol, registry, or official book.
vis--vis the much criticized Psychiatric Report, shows that the
acts complained of do not in any manner, by whatever stretch of
the imagination, fall under any of the eight (8) enumerated acts
constituting the offense of falsification.
In order to properly address the issue presented by petitioner
Gloria Aguirre, it is necessary that we discuss the elements of
the crime of falsification of private document under the Revised
Penal Code, a crime which all the respondents have been
accused of perpetrating. The elements of said crime under
paragraph 2 of Article 172 of our penal code are as follows: 1)
that the offender committed any acts of falsification, except
those in par. 7, enumerated in Article 171; 2) that the
falsification was committed in any private document; and 3) that
the falsification caused damage to a third party or at least the
falsification was committed with intent to cause such damage.
Under Article 171, paragraph 2, a person may commit
falsification of a private document by causing it to appear in a
document that a person or persons participated in an act or
proceeding, when such person or persons did not in fact so
participate in the act or proceeding. On the other hand,
falsification under par. 3 of the same article is perpetrated by a
person or persons who, participating in an act or proceeding,
made statements in that act or proceeding and the offender, in
making a document, attributed to such person or persons
statements other than those in fact made by such person or
persons. And the crime defined under paragraph 4 thereof is
committed when 1) the offender makes in a document
statements in a narration of facts; 2) he has a legal obligation to
disclose the truth of the facts narrated by him; 3) the facts
narrated by the offender are absolutely false; and 4) the

perversion of truth in the narration of facts was made with the


wrongful intent of injuring a third person.
Applying the above-stated elements of the crime to the case at
bar, in order that respondent Dr. Pascual, and the rest acting in
conspiracy with her, to have committed the crime of falsification
under par. 3 and 4 of Article 171 of the Revised Penal Code, it is
essential that that there be prima facie evidence to show that she
had caused it to appear that Larry gave his consent to be
vasectomized or at the very least, that the proposed medical
procedure was explained to Larry. But in the assailed report, no
such thing was done. Lest it be forgotten, the reason for having
Larry psychiatrically evaluated was precisely to ascertain
whether or not he can validly consent with impunity to the
proposed vasectomy, and not to obtain his consent to it or to
oblige respondent Dr. Pascual to explain to him what the import
of the medical procedure was. Further, that Larry's consent to be
vasectomized was not obtained by the psychiatrist was of no
moment, because nowhere is it stated in said report that such
assent was obtained. At any rate, petitioner Gloria Aguirre
contradicts her very own allegations when she persists in the
contention that Larry has the mental age of a child; hence, he
was legally incapable of validly consenting to the procedure.
In the matter of the supposed incorrect diagnosis of Lourdes
Aguirre, with regard to paragraph 2 of Article 171 of the
Revised Penal Code, we quote with approval the succinct
statements of the Assistant City Prosecutor:
[T]he fact that Dra. Pascual cited finding, which is not of her
own personal knowledge in her report does not mean that she
committed falsification in the process. Her sources may be
wrong and may affect the veracity of her report, but for as long
as she has not alleged therein that she personally diagnosed
Lourdes Aguirre, which allegation would not then be true, she
cannot be charged of falsification. Therefore, it goes without
saying that if the author of the report is not guilty, then with
more reason the other respondents are not liable.54
As to the charge of mutilation, Art. 262 of the Revised Penal
Code defines the crime as
Art. 262. Mutilation. The penalty of reclusion temporal to
reclusion perpetua shall be imposed upon any person who shall
intentionally mutilate another by depriving him, either totally or
partially, of some essential organ for reproduction.
Any other intentional mutilation shall be punished by prision
mayor in its medium and maximum periods.
A straightforward scrutiny of the above provision shows that the
elements55 of mutilation under the first paragraph of Art. 262 of
the Revised Penal Code to be 1) that there be a castration, that
is, mutilation of organs necessary for generation; and 2) that the
mutilation is caused purposely and deliberately, that is, to
deprive the offended party of some essential organ for
reproduction. According to the public prosecutor, the facts
alleged did not amount to the crime of mutilation as defined and
penalized above, i.e., "[t]he vasectomy operation did not in any
way deprived (sic) Larry of his reproductive organ, which is still
very much part of his physical self." Petitioner Gloria Aguirre,
however, would want this Court to make a ruling that bilateral
vasectomy constitutes the crime of mutilation.
This we cannot do, for such an interpretation would be contrary
to the intentions of the framers of our penal code.
A fitting riposte to the issue at hand lies in United States v.
Esparcia,56 in which this Court had the occasion to shed light on
the implication of the term mutilation. Therein we said that:

The sole point which it is desirable to discuss is whether or not


the crime committed is that defined and penalized by article 414
of the Penal Code. The English translation of this article reads:
"Any person who shall intentionally castrate another shall suffer
a penalty ranging from reclusion temporal to reclusion
perpetua." The Spanish text, which should govern, uses the
word "castrare," inadequately translated into English as
"castrate." The word "capar," which is synonymous of "castrar,"
is defined in the Royal Academic Dictionary as the destruction
of the organs of generation or conception. Clearly it is the
intention of the law to punish any person who shall intentionally
deprived another of any organ necessary for reproduction. An
applicable construction is that of Viada in the following
language:
"At the head of these crimes, according to their order of gravity,
is the mutilation known by the name of 'castration' which
consists of the amputation of whatever organ is necessary for
generation. The law could not fail to punish with the utmost
severity such a crime, which, although not destroying life,
deprives a person of the means to transmit it. But bear in mind
that according to this article in order for 'castration' to exist, it is
indispensable that the 'castration' be made purposely. The law
does not look only to the result but also to the intention of the
act. Consequently, if by reason of an injury or attack, a person is
deprived of the organs of generation, the act, although voluntary,
not being intentional to that end, it would not come under the
provisions of this article, but under No. 2 of article 431." (Viada,
Codigo Penal, vol. 3, p. 70. See to same effect, 4 Groizard,
Codigo Penal, p. 525.)
Thus, the question is, does vasectomy deprive a man, totally or
partially, of some essential organ of reproduction? We answer in
the negative.
In the male sterilization procedure of vasectomy, the tubular
passage, called the vas deferens, through which the sperm (cells)
are transported from the testicle to the urethra where they
combine with the seminal fluid to form the ejaculant, is divided
and the cut ends merely tied.57 That part, which is cut, that is,
the vas deferens, is merely a passageway that is part of the duct
system of the male reproductive organs. The vas deferens is not
an organ,i.e., a highly organized unit of structure, having a
defined function in a multicellular organism and consisting of a
range
of
tissues.58 Be
that
as
it
may,
even
assuming arguendo that the tubular passage can be considered
an organ, the cutting of the vas deferens does not divest or deny
a man of any essential organ of reproduction for the simple
reason that it does not entail the taking away of a part or portion
of the male reproductive system. The cut ends, after they have
been tied, are then dropped back into the incision.59
Though undeniably, vasectomy denies a man his power of
reproduction, such procedure does not deprive him, "either
totally or partially, of some essential organ for reproduction."
Notably, the ordinary usage of the term "mutilation" is the
deprivation of a limb or essential part (of the body), 60 with the
operative expression being "deprivation." In the same manner,
the word "castration" is defined as the removal of the testies or
ovaries.61 Such being the case in this present petition, the
bilateral vasectomy done on Larry could not have amounted to
the crime of mutilation as defined and punished under Article
262, paragraph 1, of the Revised Penal Code. And no criminal
culpability could be foisted on to respondent Dr. Agatep, the
urologist who performed the procedure, much less the other
respondents. Thus, we find sufficient evidence to explain why
the Assistant City Prosecutor and the DOJ ruled the way they
did. Verily, We agree with the Court of Appeals that the writ
of certiorari is unavailing; hence, should not be issued.
It is once more apropos to pointedly apply the Court's general
policy of non-interference in the conduct of preliminary
investigations. As it has been oft said, the Supreme Court cannot
order the prosecution of a person against whom the prosecutor

does not find sufficient evidence to support at least a prima


facie case.62 The courts try and absolve or convict the accused
but, as a rule, have no part in the initial decision to prosecute
him.63 The possible exception to this rule is where there is an
unmistakable showing of a grave abuse of discretion amounting
to lack or excess of jurisdiction that will justify judicial
intrusion into the precincts of the executive. But that is not the
case herein.

WHEREFORE, premises considered, the instant petition


is DENIED for lack of merit. The assailed 21 July
2005Decision and 5 December 2005 Resolution, both of the
Court of Appeals in CA-G.R. SP No. 88370 are
herebyAFFIRMED. Costs against petitioner Gloria Aguirre.