EN BANC

G.R. No. 133478. January 16, 2002.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SALUSTIANO CALLOS, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

SYNOPSIS

Appellant was convicted of two counts of rape committed against his own minor daughter. He was meted the penalty of death and hence, this automatic review.

The only argument advanced here is the real age of the victim which is a requirement as special qualifying circumstance in the crime of rape under

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; AUTOMATIC REVIEW; DUTY OF COURT TO DETERMINE THE LIABILITY OF ACCUSED IN ALL CASES WHERE DEATH PENALTY IS IMPOSED. Appellant in the present automatic review advances the lone, shot-gun argument that the real age of the victim was not duly established. He does not question the propriety of his conviction on the two counts of the crime of rape, limiting himself to merely arguing that the death penalty imposed by the trial court is not in accord with the recent pronouncements of this Court in (G.R. No. 122764, September 28, 1998) and (G.R. No. 126096, July 26, 1999), where we held that the special qualifying circumstances required in

2. ID.; EVIDENCE; CREDIBILITY OF WITNESSES; CATEGORICAL TESTIMONY OF THE VICTIM, SUFFICIENT FOR CONVICTION. Regarding the rape alleged to have been committed on November 29, 1994, appellant was, however, absolutely silent, which muteness becomes an eloquent admission of the crime charged (, 301 SCRA 192 1999). More importantly, Lorilyn categorically testified that she was raped by appellant on November 29, 1994, aside from the other numerous occasions when she was similarly abused. Such testimony, which oftentimes is the only evidence that can be offered to prove the guilt of the perpetrator, is sufficient to sustain a conviction (, 303 SCRA 518 1999; , 301 SCRA 84 1999). No woman, especially one who is of the tender age, would concoct a horrendous tale, allow an examination of her private parts, and thereafter permit herself to be subjected to public trial and forced to relive such horrifying experience, if she is not motivated solely by the desire to have the culprit apprehended and punished (, 305 SCRA 157 1999; , 305 SCRA 543 1999; , 308 SCRA 396 1999), even if the family's honor is at stake, and even if it is her own father that she would be sending to prison (, 305 SCRA 253 1999). The long standing rule is that when an alleged victim of rape says she was violated, she says in effect all that is necessary to show that rape had been inflicted on her, and so long as her testimony meets the test of credibility, the accused may be convicted on the basis thereof (, 303 SCRA 697 1999; , 304 SCRA 83 1999; , 304 SCRA 272 1999; , 305 SCRA 93 1999). The findings of the trial court on this score should, therefore, be upheld. HTaSEA

3. CRIMINAL LAW; reclusion perpetua to death. In order to impose the higher penalty, the duality and concurrence of both circumstances must be alleged and proved (, 296 SCRA 17 1998).

4. ID.; ID.; ID.; AGE OF VICTIM, SUFFICIENTLY ESTABLISHED IN CASE AT BAR. The People, in its brief, claims that there is sufficient evidence to establish the age of the victim at the time of rape. Lorilyn Callos testified that she was 13 at the time she was put on the stand. She also testified that she was born on August 6, 1982; hence, was 12 years old at the time of commission of the crime. She also disclosed to the examining physician that she was 13 years old at the time of her examination. She informed Policeman Barasona that she was 13 years old when she lodged a complaint against appellant on November 30, 1995. Even appellant declared that his daughter was 14 years old at the time of his testimony (p. 6, tsn, February 18, 1997), making her 12 years old at the time of the commission of the crime. Although not stated in the People's brief, in our review of the record, we noted that the minutes of the hearing indicate that Lorilyn Callos' birth certificate was presented and marked during trial. Although said document was never formally offered in evidence and, therefore, strictly speaking, does not form part of the record of exhibits of the case, its is to be significantly considered that the defense counsel admitted the authenticity of the birth certificate (Order of Judge Mamerto M. Buban, Jr., October 2, 1996). In the determination of each element of the case, only moral certainty is required. In (G.R. Nos. 131167-68, August 23, 2000), the Court held that the prosecution proved the minority of the victim beyond reasonable doubt through the testimony of the victim's mother. In the present case, appellant himself, Lorilyn's own father, testified that his daughter was a minor at the time of the commission of the offense. Adding to that the various documents presented in court as well as pertinent testimony, one can hardly doubt that indeed, Lorilyn was a minor at the time she was raped. It must be stressed that in criminal cases, the determination of the guilt of the accused, and along with it the proper penalty to be imposed, is coupled with the grave responsibility of safeguarding the accused's life and liberty, bearing in mind that all doubts should be resolved in favor of the accused. Imposing the death penalty should be exercised with extreme caution, and only in instances where the guilt of the accused is proven beyond reasonable doubt, wherein both substantive and procedural due process are observed, can it be upheld. In this case, there exists no doubt that Lorilyn's age was sufficiently proved. The Court, therefore, must sustain the conviction of the accused.

5. CIVIL LAW; DAMAGES; CIVIL INDEMNITY AND MORAL DAMAGES WHERE PENALTY IMPOSED IS DEATH. Civil indemnity, which is actually in the nature of actual or compensatory damages, is mandatory upon the finding of the fact of rape (, 309 SCRA 417 1999). If the crime of rape is effectively qualified by any of the circumstances under which the penalty of death is authorized, the civil indemnity for the victim shall not be less than P75,000 (, 302 SCRA 455 1999, , 303 SCRA 697 1999; , 303 SCRA 709 1999). In addition, moral damages, fixed in the amount of P50,000.00, per count, should also be awarded to the rape victim without need for pleading or proof of the basis thereof (, 301 SCRA 84 1999; 305 SCRA 811 1999).

6. CRIMINAL LAW; MITIGATING CIRCUMSTANCES; PLEA OF GUILTY, MITIGATING ONLY IF DONE BEFORE THE PROSECUTION PRESENTED EVIDENCE. After the prosecution had presented its evidence, defense counsel moved to set aside appellant's plea of not guilty and requested that appellant be re-arraigned so that he may voluntarily change his plea to guilty (p. 2, tsn, Feb. 13, 1997), turning such plea into a mitigating circumstance. Under Section 7, Article 13 of theDura lex sed lex. Ultimately, we have to follow the law.

D E C I S I O N

PER CURIAM p:

Respect for a woman's life includes giving due regard to her innocence, honor, and purity. When these virtues are violated, the offender reveals his utter disregard for womanhood and the more it becomes appalling when the violator is a girl's own father.

Before us on automatic review is the decision of the Regional Trial Court of the 5th Judicial Region (Branch 15, Tabaco, Albay) imposing upon appellant Salustiano Callos the supreme penalty of death for two counts of rape.

Two informations were filed upon complaint of Lorilyn Callos, appellant's own 12-year old daughter, on January 22, 1996. The Information in Criminal Case No. T-2708 charged:

That on or about November 17, 1994, at more or less 8:00 o'clock in the evening, at Purok 4, Barangay Bantayan, Municipality of Tabaco, Province of Albay, Philippines and within the jurisdiction of the Honorable Court, the above-named accused with lewd design and by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with her 12-year-old daughter, LORILYN CALLOS, against her will, to her damage and prejudice.

(p. 13, Records, T-2708.)

The Information in the second case, Criminal Case No. T-2709, charged a rape committed on November 29, 1994 in the same Purok 4 in Bantayan, Tabaco, Albay.

Upon arraignment, appellant pleaded not guilty and joint trial on the merits accordingly ensued. The evidence presented by both the prosecution and defense is summarized in the People's Brief thusly:

On November 17, 1994, at about 8:00 in the evening, Lorilyn Callos, together with her brothers, Arjay (nine 9 years old), Gerald (seven 7 years old), Jason (five 5 years old), Mark John (three 3 years old), and Jessa May (two 2 years old), was sleeping in their house at Bantayan, Tabaco, Albay (pp. 4-11, TSN, May 21, 1996). While they were thus sleeping, Lorilyn was suddenly awakened when appellant (her father) went on top of her. After that, appellant pulled down her panties. Lorilyn pulled it back but appellant prevailed (p. 18, TSN, September 2, 1996). Thereafter, appellant held her breasts and succeeded in inserting her penis into her "private part." Lorilyn wanted to free herself from appellant but could not do so because appellant pinned her down. Lorilyn felt pain when appellant inserted his penis into her "private part." Feeling helpless, Lorilyn cried. Appellant told her not to cry (pp. 7-8, ibid.).

Lorilyn testified that appellant was on top of her only for a while because one of her brothers woke up. After appellant consummated his beastly desire, Lorilyn noticed there was blood on her "private part" (pp. 4-20, TSN, September 2, 1996).

Lorilyn further testified that appellant was always doing it (sexual intercourse) to her but could not recall the dates. Appellant would always threaten her every time she would not follow his evil wishes. Lorilyn's mother knew about the incident but did nothing. She told Lorilyn not to tell her "uncles" about the incident as they might hurt appellant (p. 15, ibid.).

Lorilyn was able to finally reveal her harrowing experience to "Rosemarie" and her "Ate Chu" when the latter found her in their house crying. When asked why she was crying she told her (Ate Chu) about the incident. "Ate Chu" got mad at appellant and told Lorilyn that they should tell her uncle (Ate Chu's father) the incident. Lorilyn instead pleaded to "Ate Chu" not to tell her uncle because appellant would her her "again" (p. 16, ibid.).

Despite her mother's threats, Lorilyn continued to narrate her experience in the hands of appellant. She testified that on November 29, 1994, at about 2:00 p.m., she, together with her brothers, was in their house when appellant told Lorilyn's "brothers" to leave the house for them to take a bath in the river. Appellant prevented Lorilyn from leaving the house. He told her that if she disobeyed his wish, he would punish her. After Lorilyn's "brothers" left, appellant told Lorilyn to get inside their house. Lorilyn refused but appellant got a whip and commanded her to do as told. Inside the house, appellant ordered Lorilyn to undress. Lorilyn initially refused but when appellant threatened to whip her with a piece of wood, Lorilyn obligingly followed out of fear. Then, appellant inserted his penis into her "private part." Lorilyn tried to free herself from appellant but failed because appellant was on top of her. While appellant was on top of her, he was sucking and mashing her breast. Lorilyn kept on crying while appellant was doing his demonic acts (pp. 22-24, ibid.).

Thereafter, Lorilyn said to appellant that she would tell her mother what he did to her. Appellant threatened Lorilyn not to tell her mother otherwise he would punish her. Appellant also told Lorilyn not to tell her brothers about the incident. After their brief exchange of words, appellant ordered Lorilyn to change her clothes and leave the house (pp. 24-25, ibid.).

Dr. Amalia Guiruba, the rural health physician of Tabaco, Albay testified that she physically examined Lorilyn on December 1, 1995. She found out that Lorilyn's labia majora and minora are coaptated. She also found deep lacerations at 6:00 o'clock, 9:00 o'clock and 3:00 o'clock positions which could have been caused by an insertion of an erect penis. She further testified that it is possible that the lacerations could have been inflicted on the date of the rape incidents as appearing in the medico-legal report (Exhibit E) (pp. 15-21, TSN, December 16, 1996).

Resurreccion Barasona, a policeman stationed at Tabaco, Albay testified that on November 30, 1995, Lorilyn and Lourdes Callos went to their police station and lodged a complaint for rape against appellant. Consequently, policeman Barasona entered said complaint in their police blotter identified as Blotter Entry No. 27541 (Exhibit F) (pp. TSN, Jan. 20, 1997).

(pp. 89-94, Rollo.)

In both cases, the trial court, in its decision dated October 24, 1997, found appellant guilty as charged. Consequently, the death penalty was imposed in each case and appellant was ordered to indemnify Lorilyn in the amount of P50,000.00 in each case (p. 29, Rollo).

Appellant in the present automatic review advances the lone, shot-gun argument that the real age of the victim was not duly established. He does not question the propriety of his conviction on the two counts of the crime of rape, limiting himself to merely arguing that the death penalty imposed by the trial court is not in accord with the recent pronouncements of this Court in (G.R. No. 122764, September 28, 1998) and (G.R. No. 126096, July 26, 1999), where we held that the special qualifying circumstances required in

As to the incident on November 17, 1994, appellant claimed that he attended a birthday party of his uncle and came home in so drunken a state that he passed out right outside his house. He frankly admitted he did something wrong, that is, he almost molested his daughter had it not been for the timely intervention of his wife. He further testified that he whipped his daughter because she broke the radio.

However, on cross-examination, the following declarations were elicited from appellant:

Q: You said that you had already asked for forgiveness, am I correct?

A: Yes, sir.

Q: And you also said that you had asked for forgiveness because you had done something wrong?

A: Yes, sir.

Q: And that something which is wrong was the sexual intercourse you had with your daughter Lorelyn Corral (sic) on November 17, 1994?

A: Yes, sir.

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Q: And in the early morning of the following day, you had learned that you did something wrong to your daughter?

A: I was informed about it by my wife, sir.

Q: Knowing that you had sexual intercourse with your daughter, what did you do?

A: I cried a lot when I learned about it, sir. I realized that I had done something wrong.

(pp. 9, 15, tsn, Feb. 18, 1997.)

This admission of appellant in open court shows that he indeed raped his daughter on the night of November 17, 1994.

Regarding the rape alleged to have been committed on November 29, 1994, appellant was, however, absolutely silent, which muteness becomes an eloquent admission of the crime charged ( 301 SCRA 192 1999). More importantly, Lorilyn categorically testified that she was raped by appellant on November 29, 1994, aside from the other numerous occasions when she was similarly abused. Such testimony, which oftentimes is the only evidence that can be offered to prove the guilt of the perpetrator, is sufficient to sustain a conviction (, 303 SCRA 518 1999; 301 SCRA 84 1999). No woman, especially one who is of the tender age, would concoct a horrendous tale, allow an examination of her private parts, and thereafter permit herself to be subjected to public trial and forced to relive such horrifying experience, if she is not motivated solely by the desire to have the culprit apprehended and punished (, 305 SCRA 157 1999; , 305 SCRA 543 1999; , 308 SCRA 396 1999), even if the family's honor is at stake, and even if it is her own father that she would be sending to prison (, 305 SCRA 253 1999. The long standing rule is that when an alleged victim of rape says she was violated, she says in effect all that is necessary to show that rape had been inflicted on her, and so long as her testimony meets the test of credibility, the accused may be convicted on the basis thereof (, 303 SCRA 697 1999; , 304 SCRA 83 1999; , 304 SCRA 272 1999; , 305 SCRA 93 1999). The findings of the trial court on this score should, therefore, be upheld.

Now to the issue of whether there is independent evidence of Lorilyn's age to qualify the rape and to justify the penalty of death. Under Article 335 of thereclusion perpetua to death. In order to impose the higher penalty, the duality and concurrence of both circumstances must be alleged and proved (, 296 SCRA 17 1998). The People, in its brief, claims that there is sufficient evidence to establish the age of the victim at the time of rape. Lorilyn Callos testified that she was 13 at the time she was put on the stand. She also testified that she was born on August 6, 1982; hence, was 12 years old at the time of commission of the crime. She also disclosed to the examining physician that she was 13 years old at the time of her examination. She informed Policeman Barasona that she was 13 years old when she lodged a complaint against appellant on November 30, 1995. Even appellant declared that his daughter was 14 years old at the time of his testimony (p. 6, tsn, February 18, 1997), making her 12 years old at the time of the commission of the crime.

Although not stated in the People's brief, in our review of the record, we noted that the minutes of the hearing indicate that Lorilyn Callos' birth certificate was presented and marked during trial. Although said document was never formally offered in evidence and, therefore, strictly speaking, does not form part of the record of exhibits of the case, it is to be significantly considered that the defense counsel admitted the authenticity of the birth certificate (Order of Judge Mamerto M. Buban, Jr., October 2, 1996).

In the determination of each element of the case, only moral certainty is required. In (G.R. Nos. 131167-68, August 23, 2000), the Court held that the prosecution proved the minority of the victim beyond reasonable doubt through the testimony of the victim's mother. In the present case, appellant himself, Lorilyn's own father, testified that his daughter was a minor at the time of the commission of the offense. Adding to that the various documents presented in court as well as pertinent testimony, one can hardly doubt that indeed, Lorilyn was a minor at the time she was raped.

It must be stressed that in criminal cases, the determination of the guilt of the accused, and along with it the proper penalty to be imposed, is coupled with the grave responsibility of safeguarding the accused's life and liberty, bearing in mind that all doubts should be resolved in favor of the accused. Imposing the death penalty should be exercised with extreme caution, and only in instances where the guilt of the accused is proven beyond reasonable doubt, wherein both substantive and procedural due process are observed, can it be upheld. In this case, there exists no doubt that Lorilyn's age was sufficiently proved. The Court, therefore, must sustain the conviction of the accused.

The lower court's award of civil indemnity should, however, be modified. Civil indemnity, which is actually in the nature of actual or compensatory damages, is mandatory upon the finding of the fact of rape (, 309 SCRA 417 1999). If the crime of rape is effectively qualified by any of the circumstances under which the penalty of death is authorized, the civil indemnity for the victim shall not be less than P75,000 (, 302 SCRA 455 1999, , 303 SCRA 697 1999; , 303 SCRA 709 1999). In addition, moral damages, fixed in the amount of P50,000.00, per count, should also be awarded to the rape victim without need for pleading or proof of the basis thereof (, 301 SCRA 84 1999; , 305 SCRA 811 1999).

The saddest part of this story is the remorse of appellant, which came a little too late. After the prosecution had presented its evidence, defense counsel moved to set aside appellant's plea of not guilty and requested that appellant be re-arraigned so that he may voluntarily change his plea to guilty (p. 2, tsn, Feb. 13, 1997), turning such plea into a mitigating circumstance. Under Section 7, Article 13 of theDura lex sed lex. Ultimately, we have to follow the law.

Four members of the Court maintain their position that

WHEREFORE, the decision of the lower court is AFFIRMED with modification. Accused-appellant SALUSTIANO CALLOS is convicted of 2 counts of qualified rape and sentenced to DEATH on each count. Civil indemnity in the amount of P75,000 and moral damages in the amount of P50,000 for each count or a total of P250,000 is also awarded. No pronouncement as to costs.

In accordance with Article 83 of the

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval Gutierrez and Carpio, JJ., concur.