G.R.No.183619.October13,2009.

PEOPLE OF THE PHILIPPINES, appellee, vs. SALVINO

SUMINGWA,appellant.

Criminal Law Rape Witnesses In rape cases particularly, the

convictionoracquittaloftheaccusedmostoftendependsalmostentirelyon
thecredibilityofthecomplainantstestimony.Inrapecasesparticularly,the
convictionoracquittaloftheaccusedmostoftendependsalmostentirelyon
the credibility of the complainants testimony. By the very nature of this
crime,itisgenerallyunwitnessedandusuallythevictimislefttotestifyfor
herself.Whenarapevictimstestimonyisstraightforwardandmarkedwith
consistency despite grueling examination, it deserves full faith and
confidence and cannot be discarded. If such testimony is clear, consistent
and credible to establish the crime beyond reasonable doubt, a conviction
may be based on it, notwithstanding its subsequent retraction. Mere
retraction by a prosecution witness does not necessarily vitiate her original
testimony.
Same Same Evidence Witnesses Retractions A retraction is looked
uponwithconsiderabledisfavorbythecourts.Aretractionislookedupon
with considerable disfavor by the courts. It is exceedingly unreliable for
there is always the probability that such recantation may later on be
repudiated.Itcaneasilybeobtainedfromwitnessesthroughintimidationor
monetaryconsideration.Likeanyothertestimony,itissubjecttothetestof
credibility based on the relevant circumstances and, especially, on the
demeanorofthewitnessonthestand.
Same Same In rape committed by a father against his own daughter,
the formers moral ascendancy and influence over the latter may substitute
for actual physical violence and intimidation.It is noteworthy that
appellantpulledAAAsleg,sothathecouldinserthispenisintohervagina.
Thisadequatelyshowsthatappellantemployedforceinordertoaccomplish
his purpose. Moreover, in rape committed by a father against his own
daughter, the formers moral ascendancy and influence over the latter may
substituteforactual

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*THIRDDIVISION.
 639

VOL.603,October13,2009 639

Peoplevs.Sumingwa

physicalviolenceandintimidation.Themoralandphysicaldominionofthe
fatherissufficienttocowthevictimintosubmissiontohisbeastlydesires,
andnofurtherproofneedbeshowntoprovelackofthevictimsconsentto
herowndefilement.
Same Same When a rape victims account is straightforward and
candid, and is corroborated by the medical findings of the examining
physician, the same is sufficient to support a conviction for rape.While
appellants conviction was primarily based on the prosecutions testimonial
evidence, the same was corroborated by physical evidence consisting of the
medical findings of the medicolegal officer that there were hymenal
lacerations.Whenarapevictimsaccountisstraightforwardandcandid,and
iscorroboratedbythemedicalfindingsoftheexaminingphysician,thesame
issufficienttosupportaconvictionforrape.
SameSameSameSexualAbuseElements.The elements of sexual
abuseundertheaboveprovisionareasfollows:1.Theaccusedcommitsthe
actofsexualintercourseorlasciviousconduct.2.Thesaidactisperformed
with a child exploited in prostitution or subjected to other sexual abuse. 3.
Thechild,whethermaleorfemale,isbelow18yearsofage.
Same Same Same Words and Phrases Sexual Abuse and
Lascivious Conduct, Explained.AAA testified that in November 2000,
whilesheandappellantwereinsidethebedroom,hewentontopofherand
rubbedhispenisagainsthervaginalorificeuntilheejaculated.Shelikewise
statedinopencourtthatonMay27,2001,whileinsidetheircomfortroom,
appellant rubbed his penis against her vagina while they were in a standing
position. In both instances, there was no penetration, or even an attempt to
insert his penis into her vagina. The aforesaid acts of the appellant are
coveredbythedefinitionsofsexualabuseandlasciviousconductunder
Section 2(g) and (h) of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases promulgated to implement the
provisionsofR.A.7610:(g)Sexualabuseincludestheemployment,use,
persuasion, inducement, enticement or coercion of a child to engage in, or
assist another person to engage in, sexual intercourse or lascivious conduct
or the molestation, prostitution, or incest with children (h) Lascivious
conductmeanstheintentionaltouching,eitherdirectlyorthroughclothing,
ofthegenitalia,

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640 SUPREMECOURTREPORTSANNOTATED
 Peoplevs.Sumingwa

anus,groin,breast,innerthigh,orbuttocks,ortheintroductionofanyobject
into the genitalia, anus or mouth, of any person, whether of the same or
oppositesex,withanintenttoabuse,humiliate,harass,degrade,orarouseor
gratify the sexual desire of any person, bestiality, masturbation, lascivious
exhibitionofthegenitalsorpublicareaofaperson.
Same Same Right to be Informed Variance Doctrine An accused
chargedwithqualifiedrapecanbefoundguiltyofthelessercrimeofActsof
Lasciviousness committed against a child.Following the variance
doctrine embodied in Section 4, in relation to Section 5, Rule 120 of the
Rules of Criminal Procedure, appellant can be found guilty of the lesser
crime of Acts of Lasciviousness committed against a child. The pertinent
provisionsread:Sec.4.Judgmentincaseofvariancebetweenallegationand
proof.Whenthereisvariancebetweentheoffensechargedinthecomplaint
orinformationandthatproved,andtheoffenseaschargedisincludedinor
necessarilyincludestheoffenseproved,theaccusedshallbeconvictedofthe
offense proved which is included in the offense charged, or of the offense
charged which is included in the offense proved. Sec. 5. When an offense
includesorisincludedinanother.Anoffensechargednecessarilyincludes
theoffenseprovedwhensomeoftheessentialelementsoringredientsofthe
former,asallegedinthecomplaintorinformation,constitutethelatter.And
an offense charged is necessarily included in the offense proved, when the
essential ingredients of the former constitute or form part of those
constitutingthelatter.
Same Same Alternative Circumstances Relationship In crimes
against chastity, such as Acts of Lasciviousness, relationship is always
aggravating.As the crime was committed by the father of the offended
party, the alternative circumstance of relationship should be appreciated. In
crimes against chastity, such as Acts of Lasciviousness, relationship is
alwaysaggravating.
Same Pleadings and Practice The character of the crime is not
determined by the caption or preamble of the information nor from the
specificationoftheprovisionoflawallegedtohavebeenviolated,butbythe
recital of the ultimate facts and circumstances in the complaint or
information.We are not unmindful of the fact that appellant was
specifically charged in an Information for Acts of Lasciviousness defined
andpenalizedbyArticle336oftheRPC.However,

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VOL.603,October13,2009 641

Peoplevs.Sumingwa
the failure to designate the offense by statute, or to mention the specific
provision penalizing the act, or an erroneous specification of the law
violated,doesnotvitiatetheinformationifthefactsallegedclearlyrecitethe
facts constituting the crime charged. The character of the crime is not
determined by the caption or preamble of the information nor from the
specificationoftheprovisionoflawallegedtohavebeenviolated,butbythe
recital of the ultimate facts and circumstances in the complaint or
information. In the present case, the body of the information contains an
averment of the acts alleged to have been committed by appellant which
unmistakably refers to acts punishable under Section 5(b), Article III, R.A.
7610.
SameAttemptedRapeElementsRapeisattemptedwhentheoffender
commences the commission of rape directly by overt acts and does not
performalltheactsofexecutionbyreasonofsomecauseoraccidentother
thanhisownspontaneousdesistance.Rapeisattemptedwhentheoffender
commences the commission of rape directly by overt acts and does not
perform all the acts of execution by reason of some cause or accident other
than his own spontaneous desistance. The prosecution must, therefore,
establish the following elements of an attempted felony: 1. The offender
commencesthecommissionofthefelonydirectlybyovertacts2.Hedoes
notperformalltheactsofexecutionwhichshouldproducethefelony3.The
offenders act be not stopped by his own spontaneous desistance 4. The
nonperformanceofallactsofexecutionwasduetocauseoraccidentother
thanhisspontaneousdesistance.
Same Same Words and Phrases The attempt that the Revised Penal
Code punishes is that which has a logical connection to a particular,
concrete offense and that which is the beginning of the execution of the
offensebyovertactsoftheperpetrator,leadingdirectlytoitsrealizationand
consummation Overt or external act has been defined as some physical
activityordeed,indicatingtheintentiontocommitaparticularcrime,more
than a mere planning or preparation, which if carried out to its complete
termination following its natural course, without being frustrated by
external obstacles nor by the voluntary desistance of the perpetrator, will
logicallyandnecessarilyripenintoaconcreteoffense.Theattemptthatthe
RPCpunishesisthatwhichhasalogicalconnectiontoaparticular,concrete
offense and that which is the beginning of the execution of the offense by
overtactsoftheperpetrator,leadingdirectlytoitsrealiza

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642 SUPREMECOURTREPORTSANNOTATED

Peoplevs.Sumingwa

tionandconsummation.Intheinstantcase,theprimaryquestionthatcomes
to the fore is whether or not appellants act of removing AAAs pants
constituted an overt act of Rape. We answer in the negative. Overt or
externalact has been defined as some physical activity or deed, indicating
the intention to commit a particular crime, more than a mere planning or
preparation, which if carried out to its complete termination following its
natural course, without being frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will logically and necessarily ripen
intoaconcreteoffense.
SameDoubleJeopardyDemurrertoEvidenceAnordergrantingthe
accuseds demurrer to evidence is a resolution of the case on the merits
amounting to an acquittalany further prosecution of the accused after an
acquittal would violate the proscription on double jeopardy.Neither can
weholdappellantliableforOtherLightThreatsforthreateningAAAwitha
bolo for Unjust Vexation for undressing her without her consent, causing
disturbance,torment,distress,andvexationnorforMaltreatmentforboxing
therightsideofAAAsbuttocks.Althoughalloftheaboveactswerealleged
in the Information for Attempted Rape in the Order dated September 24,
2004,CriminalCaseNos.1650,1652and1653involvingtheabovecrimes
were dismissed for insufficiency of evidence based on the demurrer to
evidence filed by appellant. The order granting appellants demurrer to
evidence was a resolution of the case on the merits, and it amounted to an
acquittal. Any further prosecution of the accused after an acquittal would
violate the proscription on double jeopardy. Accordingly, appellants
convictionofanyoftheabovecrimes,evenunderCriminalCaseNo.1651,
wouldtrenchinhisconstitutionalrightagainstdoublejeopardy.
Same Unjust Vexation The second paragraph of Art. 287 of the
Revised Penal Code is broad enough to include any human conduct that,
although not productive of some physical or material harm, could
unjustifiablyannoyorvexaninnocentpersontheparamountquestiontobe
considered is whether the offenders act caused annoyance, irritation,
torment, distress, or disturbance to the mind of the person to whom it was
directed.Appellant was charged with Unjust Vexation, defined and
penalized by Article 287 of the RPC, which reads: ART. 287. Light
coercions.Any person who, by means of violence, shall seize anything
belongingtohisdebtorforthepurpose

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VOL.603,October13,2009 643

Peoplevs.Sumingwa

of applying the same to the payment of the debt, shall suffer the penalty of
arrestomayor in its minimum period and a fine equivalent to the value of
the thing, but in no case less than 75 pesos. Any other coercion or unjust
vexationshallbepunishedbyarrestomenororafinerangingfrom5to200
pesos, or both. The second paragraph of this provision is broad enough to
includeanyhumanconductthat,althoughnotproductiveofsomephysicalor
material harm, could unjustifiably annoy or vex an innocent person. The
paramount question to be considered is whether the offenders act caused
annoyance, irritation, torment, distress, or disturbance to the mind of the
persontowhomitwasdirected.

APPEALfromadecisionoftheCourtofAppeals.
ThefactsarestatedintheopinionoftheCourt.
TheSolicitorGeneralforappellee.
PublicAttorneysOfficeforappellant.

NACHURA,J.:
On appeal before us is the January 31, 2008 Court of Appeals
(CA) Decision1 in CAG.R. CR No. 30045 affirming with
modification the February 14, 2006 Regional Trial Court2 (RTC)
Consolidated Judgment3 against appellant Salvino Sumingwa in
CriminalCaseNos.1644and1645forActsofLasciviousness1646,
1649 and 1654 for Rape 1651 for Attempted Rape and 1655 for
UnjustVexation. Assailed also is the June 5, 2008 CA Resolution4
denyingappellantsmotionforreconsideration.

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1 Penned by Associate Justice Myrna DimarananVidal, with Associate Justices

JoseCatralMendozaandJoseC.Reyes,Jr.,concurringRollo,pp.238.
2Branch35,BontocMountainProvince.
3PennedbyPairingJudgeArtemioB.MarreroCARollo,pp.5974.
4Rollo,pp.4244.

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644 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Sumingwa

In twelve Informations, the prosecution charged appellant with

two(2)countsofActsofLasciviousness,5four(4)countsofRape,6
three (3) counts of Unjust Vexation,7 one (1) count of Other Light
Threats,8 one (1) count of Maltreatment,9 and one (1) count of
AttemptedRape10 for acts committed against his minor11 daughter
AAAfrom19992001.
Appellantpleadednotguiltytoallthecharges.OnSeptember
24,2004,theRTCdismissed12CriminalCaseNos.1647forRape
1648 for Unjust Vexation 1650 for Other Light Threats 1652 for
Unjust Vexation and 1653 for Maltreatment, on the basis of the
DemurrertoEvidence13filedbyappellant.
Sometime in August 1999, between 8:00 and 10:00 in the
morning,AAA,togetherwithherbrothersandherfather,appellant
herein, was in their residence in Mountain Province, watching
television. Appellant called AAA and ordered her to sit in front of
him.Asshewassitting,appellanttoldherthatitwasnotgoodfora
girl to have small breasts. Suddenly, he inserted his hands into
AAAs shirt then fondled her breast. AAA resisted by moving her
handsbackwards.14
One afternoon in September 1999, AAAs mother and brothers
wenttoschoolleavingAAAandappellantintheirhouse.Whilein
the masters bedroom, appellant ordered AAA to join him inside.
There,appellantremovedhisundergarmentsthenforcedhertograsp
andfondlehispenisuntilhe

_______________

5DocketedasCriminalCaseNos.1644and1645.
6DocketedasCriminalCaseNos.1646,1647,1649and1654.
7DocketedasCriminalCaseNos.1648,1652and1655.
8DocketedasCriminalCaseNo.1650.
9DocketedasCriminalCaseNo.1653.
10DocketedasCriminalCaseNo.1651.
11Theactscomplainedofwerecommittedwhenthevictimwas15and16years
old.
12Records(CriminalCaseNo.1644),pp.156158.
13Id.,atpp.141148.
14TSN,December10,2003,pp.46.

645

VOL.603,October13,2009 645
Peoplevs.Sumingwa

ejaculated. Appellant thereafter told her not to be malicious about

it.15
The same incident took place in August 2000. This time,
appellant forced AAA to lie down on the bed, went on top of her,
removedhershortpantsandpanty,thenrubbedhispenisagainsther
vaginal orifice. AAA resisted by crossing her legs but appellant
liftedherrightlegandpartiallyinsertedhispenisintohervagina.As
she struggled, appellant stood up then ejaculated. AAA felt
numbness on her buttocks after the bestial act committed against
her.16
Appellant repeated his dastardly act against AAA on separate
occasions in September and November 2000. During these times,
appellant satisfied himself by rubbing his penis against AAAs
vagina without trying to penetrate it. After reaching the top of his
lust,heusedAAAsshortpantstowipehismess.Insteadofkeeping
her harrowing experience to herself, AAA narrated it to her best
friend.17
OnNovember24,2000,appellantapproachedAAAandtoldher
that he wanted to have sex with her. When she refused, appellant
forcibly removed her pants and boxed her right buttock. AAA still
refused, which angered appellant. He then went to the kitchen and
returned with a bolo which he used in threatening her. Luckily,
AAAsgrandmotherarrived,promptingappellanttodesistfromhis
beastlydesires.18
On December 20, 2000, AAA and her best friend were doing
their school work in front of the formers house. When appellant
arrived, he embraced AAA. He, thereafter, pulled her inside the
houseandkissedheronthelips.19
Thelastincidentoccurredinsidethecomfortroomoftheirhouse
onMay27,2001.WhenAAAentered,appellantpulled

_______________

15Id.,atpp.68.
16Id.,atpp.810.
17Id.,atpp.1112.
18Id.,atpp.1213.
19Id.,atp.14.

646

646 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Sumingwa

downhershortpants and panty, unzipped his trousers, brought out

hispenis,thenrepeatedlyrubbeditonhervaginawhiletheywerein
astandingposition.20
AAAdecidedtoreportthesexualabusestohergrandmotherwho
forthwithbroughthertotheNationalBureauofInvestigationwhere
shewasexaminedbythemedicolegalofficer.Itwasfoundduring
theexaminationthattherewerenoextragenitalphysicalinjurieson
AAAs body but there were old, healed, and incomplete hymenal
lacerations.21
Appellantdeniedalltheaccusationsagainsthim.Heclaimedthat
inAugustandSeptember1999,hewasatthehouseofhismistress
inAntipoloCity.HealsoexplainedthatinAugust2000,hestayedin
BaguioCityandworkedthereasakarateinstructor.Headdedthat
heonlywenthomeinSeptember2000butleftagaininOctoberfor
Quirino,IlocosSurwherehestayedforthreeweeks.Whenhewent
backhome,hiswifeinformedhimthatAAAhadnotbeencoming
home.Thereafter,appellantwenttoBaguioCitytobuymedicinefor
hiswife,thenreturnedhomeagainonthethirdweekofDecember
2000. While there, he was confronted by his wife about his
womanizing. His wife got mad and refused to forgive him despite
his repeated pleas. Consequently, he became furious and almost
choked his wife to death when she ignored and refused to talk to
him.ThispromptedhimtoleaveandgobacktoBaguio.22
 SometimeinApril2001,appellantwentbackhometoreconcile
with his wife. While talking to his wife and the latters family, his
motherinlaw berated him and demanded his separation from his
wife.Appellantgotmadandthreatenedtokillhiswifesfamily.His
motherinlaw,inturn,threatenedtofilechargesagainsthim.23

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20Id.,atpp.1415.
21Records(CriminalCaseNo.1644),p.20.
22Rollo,pp.1011.
23Id.,atp.11.

647

VOL.603,October13,2009 647
Peoplevs.Sumingwa

To belie the claim of AAA that she was sexually abused in

August, November and December 2000, allegedly during school
hours, her teacher testified that the former was not absent in class
duringthosetimes.24
On November 24, 2004, AAA executed an Affidavit of
Recantation25 claiming that while appellant indeed committed
lascivious acts against her, she exaggerated her accusations against
him.Sheexplainedthatappellantdidnotactuallyrapeher,asthere
wasnopenetration.Sheaddedthatshechargedappellantwithsuch
crimes only upon the prodding of her mother and maternal
grandmother.
On February 14, 2006, the RTC rendered a decision convicting
appellantofsix(6)countsofactsoflasciviousness,26one(1)count
of attempted rape27 and one (1) count of unjust vexation,28 the
dispositiveportionofwhichreads:

WHEREFORE,aConsolidatedJudgmentisherebyrenderedsentencing
SalvinoSumingwatosuffer
1.Thepenaltyofsix(6)monthsof[arrestomayor]asminimumtosix
(6)yearsof[prisioncorreccional]asmaximumandorderinghimtopaythe
offendedpartyP10,000.00[as]indemnity[exdelicto],P10,000.00asmoral
damages and P5,000.00 as exemplary damages for each count of Acts of
LasciviousnesschargedinCrim.Cases1644,1645,1646,1649and1654
2.Thepenaltyofsix(6)yearsof[prisioncorreccional]asminimumto
twelve (12) years of [prision mayor] as maximum and ordering said
offendertopaythevictimP15,000.00asindemnity[exdelicto],P15,000.00
as moral damages and P10,000.00 as exemplary damages in Crim. Case
1651forAttemptedRapeand
3.The penalty of thirty (30) days of [arresto menor] and fine of
P200.00forUnjustVexationinCrim.Case1655.
_______________

24Id.
25Records(CriminalCaseNo.1644),p.206.
26InCriminalCasesNo.1644,1645,1646,1649,and1654.
27InCriminalCaseNo.1651.
28InCriminalCaseNo.1655.

648

648 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Sumingwa

SOORDERED.29

ThetrialcourtgavecredencetoAAAstestimoniesonthealleged
lasciviousactscommittedagainsther.Inviewofthewithdrawalof
her earlier claim of the fact of penetration, the court sustained the
innocence of appellant on the rape charges and concluded that the
crimecommittedwasonlyActsofLasciviousness.
In Criminal Case No. 1651, the RTC found that appellant
committedalltheactsofexecutionofthecrimeofRape,butfailed
to consummate it because of the arrival of AAAs grandmother.
Hence, he was convicted of attempted rape. In embracing and
kissing AAA in full view of the latters best friend, appellant was
convictedofUnjustVexation.
On appeal, the CA affirmed the conviction of appellant, except
thatinCriminalCaseNo.1646itconvictedhimofQualifiedRape
instead of Acts of Lasciviousness. The pertinent portion of the
assaileddecisionreads:

WHEREFORE,premisesconsidered,hereinappealisherebyDISMISSED
for evident lack of merit and the assailed Consolidated Judgment dated 14
February2006isherebyAFFIRMEDwiththefollowingMODIFICATION:
1.TheAppellantSALVINOSUMINGWAisherebyconvictedofthecrime
of QUALIFIED RAPE in Criminal Case No. 1646 and the penalty of
RECLUSIONPERPETUAisherebyimposeduponhim.TheAppellantis
likewiseorderedtopaytheVictim,[AAA],civilindemnityintheamount
ofPhp75,000.00aswellasmoraldamagesintheamountofPhp50,000.00,
inconformitywithprevailingjurisprudence.
2.InCriminalCaseNo.1651forAttemptedRape,theAppellant,ishereby
orderedtoindemnifythevictim[AAA]inthesumofP30,000.00ascivil
indemnity,plusthesumofP25,000.00asmoraldamages.

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29CARollo,p.73.

649
 VOL.603,October13,2009 649
Peoplevs.Sumingwa

SOORDERED.30

The appellate court concluded that, notwithstanding AAAs

retraction of her previous testimonies, the prosecution sufficiently
established the commission of the crime of Rape. It added that the
qualifying circumstances of minority and relationship were
adequatelyproven.
Hence,thisappeal.
First,inlightoftherecantationofAAA,appellantquestionsthe
credibility of the prosecution witnesses and insists that his
constitutionalrighttobepresumedinnocentbeapplied.31Second,he
argues that in Criminal Case No. 1651 for Attempted Rape, he
shouldonlybeconvictedofActsofLasciviousness,therebeingno
overtactshowingtheintenttohavesexualintercourse.32Lastly,he
insiststhathecouldnotbeconvictedofallthechargesagainsthim
for failure of the prosecution to show that he employed force,
violence or intimidation against AAA neither did the latter offer
resistancetoappellantsadvances.33
In rape cases particularly, the conviction or acquittal of the
accusedmostoftendependsalmostentirelyonthecredibilityofthe
complainants testimony. By the very nature of this crime, it is
generally unwitnessed and usually the victim is left to testify for
herself. When a rape victims testimony is straightforward and
marked with consistency despite grueling examination, it deserves
full faith and confidence and cannot be discarded.34 If such
testimony is clear, consistent and credible to establish the crime
beyond reasonable doubt, a conviction may be based on it,
notwithstandingitssubsequent

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30Rollo,pp.3738.
31Id.,atp.56.
32Id.,atpp.5658.
33CARollo,p.53.
34Peoplev.Abulon,G.R.No.174473,August17,2007,530SCRA675,687688.

650

650 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Sumingwa

retraction. Mere retraction by a prosecution witness does not

necessarilyvitiateheroriginaltestimony.35
 A retraction is looked upon with considerable disfavor by the
courts.36 It is exceedingly unreliable for there is always the
probabilitythatsuch recantation may later on be repudiated. It can
easilybeobtainedfromwitnessesthroughintimidationormonetary
consideration.37Likeanyothertestimony,itissubjecttothetestof
credibility based on the relevant circumstances and, especially, on
thedemeanorofthewitnessonthestand.38
As correctly held by the CA, AAAs testimony is credible
notwithstanding her subsequent retraction. We quote with approval
itsratiocinationinthiswise:

Clearly, the retraction made by the Victim is heavily unreliable. The

primordialfactorthatimpelledtheVictimtoretracttherapechargesagainst
her father was her fear and concern for the welfare of her family especially
herfour(4)siblings.Itdoesnotgoagainstreasonorlogictoconcludethata
daughter,inhopesofbringingbacktheharmonyinherfamilytormentedby
thetraumaofrape,wouldeventuallycoverforthedastardlyactscommitted
byherownfather.Verily,theVictimssubsequentretractiondoesnotnegate
her previous testimonies accounting her ordeal in the hands for (sic) her
rapist.39

We now proceed to discuss the specific crimes with which

appellantwascharged.

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35Peoplev.Deauna,435Phil.141,163386SCRA136,156(2002).
36Peoplev.Mion,G.R.Nos.148397400,July7,2004,433SCRA671,685686.
37Peoplev.Deauna,supranote35,at164p.157.
38Peoplev.Mion,supranote36,at685686.
39Rollo,pp.1718.

651

VOL.603,October13,2009 651
Peoplevs.Sumingwa

CriminalCaseNos.1646,1649and1654forRape
The CA correctly convicted appellant of Qualified Rape in
CriminalCaseNo.1646,andofActsofLasciviousnessinCriminal
CaseNos.1649and1654.
The crime of rape is defined in Article 266A of the Revised
Penal Code (RPC), as amended by the AntiRape Law of 1997, as
follows:

ART.266A.Rape, When and How Committed.Rape is committed

1.Byamanwhoshallhavecarnalknowledgeofawomanunderanyof
thefollowingcircumstances:
 a.Throughforce,threatorintimidation.

Inherdirecttestimony,AAAstatedthatappellantremovedhershort
pantsandpanty,wentontopofherandrubbedhispenisagainsther
vaginalorifice.Sheresistedbycrossingherlegsbuthereffortwas
notenoughtopreventappellantfrompullingherlegandeventually
insertinghispenisintohervagina.Clearly,therewaspenetration.
ItisnoteworthythatappellantpulledAAAsleg,sothathecould
inserthispenisintohervagina.Thisadequatelyshowsthatappellant
employed force in order to accomplish his purpose. Moreover, in
rape committed by a father against his own daughter, the formers
moral ascendancy and influence over the latter may substitute for
actual physical violence and intimidation. The moral and physical
dominion of the father is sufficient to cow the victim into
submission to his beastly desires, and no further proof need be
showntoprovelackofthevictimsconsenttoherowndefilement.40
While appellants conviction was primarily based on the
prosecutionstestimonialevidence,thesamewascorroborated

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40Camposv.People,G.R.No.175275,February19,2008,546SCRA334,347348
Peoplev.Balonzo,G.R.No.176153,September21,2007,533SCRA760,771.

652

652 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Sumingwa

by physical evidence consisting of the medical findings of the

medicolegal officer that there were hymenal lacerations. When a
rape victims account is straightforward and candid, and is
corroboratedbythemedicalfindingsoftheexaminingphysician,the
sameissufficienttosupportaconvictionforrape.41
Aside from the fact of commission of rape, the prosecution
likewise established that appellant is the biological father of AAA
and that the latter was then fifteen (15)42 years old. Thus, the CA
aptly convicted him of qualified rape, defined and penalized by
Article266BoftheRPC,viz.:

ART.266B.Penalties.xxx.
xxxx
Thedeathpenaltyshallalsobeimposedifthecrimeofrapeiscommitted
withanyofthefollowingaggravating/qualifyingcircumstances:
1)Whenthevictimisundereighteen(18)yearsofageandtheoffender
is a parent, ascendant, stepparent, guardian, relative by consanguinity or
affinitywithinthethirdcivildegree,orthecommonlawspouseoftheparent
ofthevictim.
InviewoftheeffectivityofRepublicAct(R.A.)9346,appellantwas
correctlymetedthepenaltyofreclusionperpetua,withouteligibility
forparole.
As to damages, appellant should pay AAA P75,000.00 as civil
indemnity, which is awarded if the crime is qualified by
circumstancesthatwarranttheimpositionofthedeathpenalty.43In
lightofprevailingjurisprudence,44weincreasethe

_______________

41Peoplev.Guambor,465Phil.671420SCRA677,682(2004).
42AAAwasbornonNovember12,1984asshowninherCertificateofLiveBirth
Records(CriminalCaseNo.1644),p.138.
43Peoplev.Antonio,G.R.No.180920,March27,2008,549SCRA569,574.
44 People v. Bejic, G.R. No. 174060, June 25, 2007, 525 SCRA 488 People v.
Ibaez,G.R.No.174656,May11,2007,523SCRA136.

653

VOL.603,October13,2009 653
Peoplevs.Sumingwa

award of moral damages from P50,000.00 to P75,000.00. Further,

the award of exemplary damages in the amount of P30,000.0045 is
authorized due to the presence of the qualifying circumstances of
minorityandrelationship.46
In Criminal Case Nos. 1649 and 1654, although appellant was
chargedwithqualifiedrapeallegedlycommittedonthesecondweek
ofNovember2000andMay27,2001,heshouldbeconvictedwith
Acts of Lasciviousness committed against a child under Section
5(b),ArticleIIIofR.A.7610,47whichreads:

SEC.5.Child Prostitution and Other Sexual Abuse.Children,

whethermaleorfemale,whoformoney,profit,oranyotherconsiderationor
duetothecoercionorinfluenceofanyadult,syndicateorgroup,indulgein
sexualintercourseorlasciviousconduct,aredeemedtobechildrenexploited
inprostitutionandothersexualabuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetuashallbeimposeduponthefollowing:
xxxx
(b)Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to other sexual
abuse:Provided,Thatwhenthevictimisundertwelve(12)yearsofage,the
perpetratorsshallbeprosecutedunderArticle335,paragraph3,forrapeand
Article336ofActNo.3815,asamended,theRevisedPenalCode,forrape
or lascivious conduct, as the case may be: Provided, That the penalty for
lasciviousconductwhenthevictimisundertwelve(12)yearsofageshallbe
reclusiontemporalinitsmediumperiodxxx.(Italicssupplied.)
_______________

45 People v. Lilio U. Achas, G.R. No. 185712, August 4, 2009, 595 SCRA 34
Peoplev.AdeladoAnguacyRagadao,G.R.No.176744,June5,2009,588SCRA716
Peoplev.LorenzoLayco,Sr.,G.R.No.182191,May8,2009,587SCRA803.
46Peoplev.Bejic,supranote44Peoplev.Ibaez,supranote44,at145.
47 Special Protection of Children Against Child Abuse, Exploitation and
DiscriminationAct.

654

654 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Sumingwa

The elements of sexual abuse under the above provision are as

follows:

1.The accused commits the act of sexual intercourse or lascivious

conduct.
2.The said act is performed with a child exploited in prostitution or
subjectedtoothersexualabuse.
3.Thechild,whethermaleorfemale,isbelow18yearsofage.48

AAA testified that in November 2000, while she and appellant

wereinsidethebedroom,hewentontopofherandrubbedhispenis
againsthervaginalorificeuntilheejaculated.49Shelikewisestated
inopencourtthatonMay27,2001,whileinsidetheircomfortroom,
appellant rubbed his penis against her vagina while they were in a
standingposition.50 In both instances, there was no penetration, or
evenanattempttoinserthispenisintohervagina.
Theaforesaidactsoftheappellantarecoveredbythedefinitions
of sexual abuse and lascivious conduct under Section 2(g) and
(h)oftheRulesandRegulationsontheReportingandInvestigation
of Child Abuse Cases promulgated to implement the provisions of
R.A.7610:

(g)Sexualabuseincludestheemployment,use,persuasion,inducement,
enticement or coercion of a child to engage in, or assist another person to
engage in, sexual intercourse or lascivious conduct or the molestation,
prostitution,orincestwithchildren
(h)Lasciviousconductmeanstheintentionaltouching,eitherdirectlyor
throughclothing,ofthegenitalia,anus,groin,breast,

_______________

48 Malto v. People, G.R. No. 164733, September 21, 2007, 533 SCRA 643, 656
Navarrete v. People, G.R. No. 147913, January 31, 2007, 513 SCRA 509, 521 Olivaresv.
CourtofAppeals,G.R.No.163866,July29,2005,465SCRA465,473.
49TSN,December10,2003,p.22.
 50Id.,atp.25.

655

VOL.603,October13,2009 655
Peoplevs.Sumingwa

inner thigh, or buttocks, or the introduction of any object into the genitalia,
anusormouth,ofanyperson,whetherofthesameoroppositesex,withan
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person, bestiality, masturbation, lascivious exhibition of the
genitalsorpublicareaofaperson.

Following the variance doctrine embodied in Section 4, in

relationtoSection5,Rule120oftheRulesofCriminalProcedure,
appellant can be found guilty of the lesser crime of Acts of
Lasciviousnesscommittedagainstachild.Thepertinentprovisions
read:

Sec.4.Judgmentincaseofvariancebetweenallegationandproof.
When there is variance between the offense charged in the complaint or
information and that proved, and the offense as charged is included in or
necessarilyincludestheoffenseproved,theaccusedshallbeconvictedofthe
offense proved which is included in the offense charged, or of the offense
chargedwhichisincludedintheoffenseproved.
Sec.5.When an offense includes or is included in another. An
offense charged necessarily includes the offense proved when some of the
essentialelementsoringredientsoftheformer,asallegedinthecomplaintor
information, constitute the latter. And an offense charged is necessarily
includedintheoffenseproved,whentheessentialingredientsoftheformer
constituteorformpartofthoseconstitutingthelatter.

Asthecrimewascommittedbythefatheroftheoffendedparty,
thealternativecircumstanceofrelationshipshouldbeappreciated.In
crimesagainstchastity,suchasActsofLasciviousness,relationship
isalwaysaggravating.51
Section 5(b) of R.A. 7610 prescribes the penalty of reclusion
temporalinitsmediumperiodtoreclusionperpetua.Sincethereis
anaggravatingcir

_______________

51Peoplev.Montinola,G.R.No.178061,January31,2008,543SCRA412.

656

656 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Sumingwa
cumstance and no mitigating circumstance, the penalty shall be
applied in its maximum periodreclusion perpetua for each
count.52
Consistent with previous rulings53 of the Court, appellant must
alsoindemnifyAAAintheamountofP15,000.00asmoraldamages
andpayafineinthesameamountinCriminalCaseNos.1649and
1654.
CriminalCaseNos.1644and1645forActsofLasciviousness
Appellant is likewise guilty of two (2) counts of Acts of
LasciviousnessunderSection5(b),ArticleIII,R.A.7610committed
against AAA on the second week of August 1999 and on the first
week of September 1999. AAA testified that in August, appellant,
withlewddesign,insertedhishandsinsidehershirtthenfondledher
breasts and in September, he forced her to hold his penis until he
ejaculated.
Thetrialandtheappellatecourtswerecorrectingivingcredence
tothevictimstestimony,indismissingappellantsdefenseofdenial
andalibi,andindisbelievingthatAAAinitiatedthecriminalcases
only upon the prodding of the latters grandmother. Settled
jurisprudencetellsusthatthemeredenialofonesinvolvementina
crime cannot take precedence over the positive testimony of the
offendedparty.54
Wearenotunmindfulofthefactthatappellantwasspecifically
charged in an Information for Acts of Lasciviousness defined and
penalized by Article 336 of the RPC. However, the failure to
designatetheoffensebystatute,ortomentionthespecificprovision
penalizingtheact,oranerroneousspecificationofthelawviolated,
doesnotvitiatetheinformationifthefactsallegedclearlyrecitethe
factsconstitutingthe

_______________

52Id.
53IdPeoplev.Candaza,G.R.No.170474,June16,2006,491SCRA280Olivares
v.CourtofAppeals,supranote48.
54People v. Heracleo Abello y Fortada, G.R. No. 151952, March 25, 2009, 582
SCRA278.

657

VOL.603,October13,2009 657
Peoplevs.Sumingwa

crimecharged.55Thecharacterofthecrimeisnotdeterminedbythe
captionorpreambleoftheinformationnorfromthespecificationof
theprovisionoflawallegedtohavebeenviolated,butbytherecital
of the ultimate facts and circumstances in the complaint or
information.56
 In the present case, the body of the information contains an
averment of the acts alleged to have been committed by appellant
which unmistakably refers to acts punishable under Section 5(b),
ArticleIII,R.A.7610.
Appellantshould,therefore,bemetedthesamepenaltiesandbe
made to answer for damages as in Criminal Case Nos. 1649 and
1654.
CriminalCaseNo.1651forAttemptedRape
AAA testified that on November 24, 2000, while AAA and her
brothers were sleeping inside their parents bedroom, appellant
enteredandaskedAAAtohavesexwithhim.WhenAAArefused,
appellantforciblyremovedherclothesandboxedherrightbuttock.
As she still resisted, he took a bolo, which he poked at her.
Appellant desisted from committing further acts because of the
timely arrival of AAAs grandmother. With these, appellant was
charged with Other Light Threats in Criminal Case No. 1650
Attempted Rape in Criminal Case No. 1651 Unjust Vexation in
Criminal Case No. 1652 and Maltreatment in Criminal Case No.
1653.
OnSeptember24,2004,theRTCdismissedCriminalCaseNos.
1650, 1652 and 1653 for insufficiency of evidence. Criminal Case
No.1651,amongothers,proceeded,however.Eventually,appellant
wasconvictedofAttemptedRape,whichtheCAaffirmed.

_______________

55Maltov.People,supranote48.
56Olivaresv.CourtofAppeals,supranote48.

658

658 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Sumingwa

Acarefulreviewoftherecordsreveals,though,thattheevidence
isinsufficienttosupportappellantsconvictionofAttemptedRape.
Rapeisattemptedwhentheoffendercommencesthecommission
of rape directly by overt acts and does not perform all the acts of
execution by reason of some cause or accident other than his own
spontaneousdesistance.57Theprosecutionmust,therefore,establish
thefollowingelementsofanattemptedfelony:

1.The offender commences the commission of the felony directly by

overtacts
2.He does not perform all the acts of execution which should produce
thefelony
3.The offenders act be not stopped by his own spontaneous
desistance
 4.The nonperformance of all acts of execution was due to cause or
accidentotherthanhisspontaneousdesistance.58

The attempt that the RPC punishes is that which has a logical
connection to a particular, concrete offense and that which is the
beginning of the execution of the offense by overt acts of the
perpetrator, leading directly to its realization and consummation.59
In the instant case, the primary question that comes to the fore is
whetherornotappellantsactofremovingAAAspantsconstituted
anovertactofRape.
Weanswerinthenegative.
Overtorexternalacthasbeendefinedassomephysicalactivity
ordeed,indicatingtheintentiontocommitaparticular

_______________

57PeopleofthePhilippinesv.CatalinoMingmingyDiscalso,G.R.No.174195,
December10,2008,573SCRA509Baleros,Jr.v.People,G.R.No.138033,February
22,2006,483SCRA10,27.
58 People of the Philippines v. Catalino Mingming y Discalso, supra note 57
Peoplev.Lizada,G.R.Nos.14346871,January24,2003,396SCRA62,94.
59Baleros,Jr.v.People,supranote57,at27.

659

VOL.603,October13,2009 659
Peoplevs.Sumingwa

crime, more than a mere planning or preparation, which if carried

outtoitscompleteterminationfollowingitsnaturalcourse,without
being frustrated by external obstacles nor by the voluntary
desistanceoftheperpetrator,willlogicallyandnecessarilyripeninto
aconcreteoffense.60
The evidence on record does not show that the above elements
are present. The detailed acts of execution showing an attempt to
rape are simply lacking. It would be too strained to construe
appellants act of removing AAAs pants as an overt act that will
logically and necessarily ripen into rape. Hence, appellant must be
acquittedofAttemptedRape.
NeithercanweholdappellantliableforOtherLightThreatsfor
threateningAAAwithaboloforUnjustVexationforundressingher
without her consent, causing disturbance, torment, distress, and
vexation nor for Maltreatment for boxing the right side of AAAs
buttocks. Although all of the above acts were alleged in the
Information for Attempted Rape in the Order dated September 24,
2004,CriminalCaseNos.1650,1652and1653involvingtheabove
crimes were dismissed for insufficiency of evidence based on the
demurrertoevidencefiledbyappellant.
 The order granting appellants demurrer to evidence was a
resolutionofthecaseonthemerits,anditamountedtoanacquittal.
Any further prosecution of the accused after an acquittal would
violate the proscription on double jeopardy.61 Accordingly,
appellants conviction of any of the above crimes, even under
Criminal Case No. 1651, would trench in his constitutional right
againstdoublejeopardy.

_______________

60Baleros,Jr.v.People,Id.,atpp.2728Peoplev.Lizada,supranote58,at94.
61People v. Lizada,Jr., G.R. No. 128587, March 16, 2007, 518 SCRA 393, 403
Peoplev.Sandiganbayan,426Phil.453376SCRA74(2002).

660

660 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Sumingwa

CriminalCaseNo.1655forUnjustVexation
Appellant was charged with Unjust Vexation, defined and
penalizedbyArticle287oftheRPC,whichreads:

ART.287.Lightcoercions.Anypersonwho,bymeansofviolence,
shall seize anything belonging to his debtor for the purpose of applying the
sametothepaymentofthedebt,shallsufferthepenaltyofarrestomayorin
itsminimumperiodandafineequivalenttothevalueofthething,butinno
caselessthan75pesos.
Anyothercoercionorunjustvexationshallbepunishedbyarrestomenor
orafinerangingfrom5to200pesos,orboth.

The second paragraph of this provision is broad enough to include

any human conduct that, although not productive of some physical
or material harm, could unjustifiably annoy or vex an innocent
person. The paramount question to be considered is whether the
offenders act caused annoyance, irritation, torment, distress, or
disturbancetothemindofthepersontowhomitwasdirected.62
Appellants acts of embracing, dragging and kissing AAA in
front of her friend annoyed AAA. The filing of the case against
appellant proved that AAA was disturbed, if not distressed by the
actsofappellant.
The penalty for coercion falling under the second paragraph of
Article 287 of the RPC is arresto menor or a fine ranging from
P5.00toP200.00orboth.Accordingly,appellantissentencedto30
days of arresto menor and to pay a fine of P200.00, with the
accessorypenaltiesthereof.
WHEREFORE,theCourtAFFIRMStheJanuary31,2008Court
of Appeals Decision in CAG.R. CR No. 30045 with
MODIFICATIONS.TheCourtfindsappellantSalvinoSumingwa:

_______________

62Maderazov.People,G.R.No.165065,September26,2006,503SCRA234,247
Baleros,Jr.v.People,supranote57,at30.

661

VOL.603,October13,2009 661
Peoplevs.Sumingwa

1.GUILTYofQUALIFIEDRAPEinCriminalCaseNo.1646.
Heissentencedtosufferthepenaltyofreclusionperpetuawithout
eligibility for parole and ordered to pay AAA P75,000.00 as civil
indemnity, P75,000.00 as moral damages, and P30,000.00 as
exemplarydamages.
2.GUILTY of four (4) counts of ACTS OF
LASCIVIOUSNESSunderSection5(b)ArticleIIIofR.A.7610in
CriminalCaseNos.1644,1645,1649,and1654.Heissentencedto
suffer the penalty of reclusion perpetua and ordered to pay AAA
P15,000.00asmoraldamagesandafineofP15,000.00,forEACH
COUNT.
3.NOTGUILTYinCriminalCaseNo.1651.
4.GUILTY of UNJUST VEXATION in Criminal Case No.
1655.Heissentencedtosuffer30daysofarrestomenorandtopay
afineofP200.00,withtheaccessorypenaltiesthereof.
SOORDERED.

Carpio(Chairperson),ChicoNazario,Velasco,Jr.andPeralta,
JJ.,concur.

Judgmentaffirmedwithmodifications.

Notes.Theelementsofunjustvexationdonotformpartofthe
crime of rape as defined in Art. 335 of the Revised Penal Code.
(Peoplevs.Contreras,338SCRA622[2000])
Where the accused admitted having ordered the cutting of the
electric, water and telephone lines of the complainants business,
withoutanynecessarypermitsorauthorizationtorelocatethelines,
andtimingtheinterruptionofelectric,waterandtelephoneservices
during peak hours of the operation of business of the complainant,
he is liable for unjust vexation. (Ong Chiu Kwan vs. Court of
Appeals,345SCRA586[2000])
o0o
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