People vs. Dagsa

G.R. No.
219889, January 29, 2018
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EDWIN DAGSA Y BANTAS @

"WING WING," Accused-Appellant.
DECISION
PERALTA, J.:
On October 11, 2004, the victim, AAA, a young girl who was then four (4) years old,
was walking home with two of her classmates after having been dismissed from their
class in Kapangan, Benguet. While they were on their way home, herein accused-
appellant, who is the cousin of AAA's father, blocked their path and told AAA's
classmates to go ahead as he would be giving AAA a candy. AAA's classmates left her
and, after walking a little farther, they looked back and saw accused-appellant remove
AAA's panty and proceeded to fondle her vagina. Thereafter, when AAA arrived home,
her mother, BBB, noticed that the victim immediately removed her panty, saying that
she no longer wanted to use it. The following day, while BBB was giving AAA a bath, the
latter refused that her vagina be washed claiming that it was painful. Upon her
mother's inquiry, AAA replied that accused-appellant played with her vagina and
inserted his penis in it. BBB immediately went to talk to AAA's classmates about the
incident whereby the said classmates relayed to her what they saw. They then
proceeded to the police station to report the incident. AAA's classmates gave their
statements, but AAA was not able to give hers as she was too shy. A criminal complaint
for rape was eventually filed against accused-appellant. In an Information dated
November 25, 2004, the Provincial Prosecutor of Benguet charged accused-appellant
with the crime of rape as defined under Article 266-A, paragraph 1(d) and penalized
under Article 266-B, paragraph 6(5), both of the Revised Penal Code (RPC), as
amended by Republic Act No. 83533 (RA 8353), in relation to Republic Act No.
76104(RA 7610).
After trial, the RTC rendered its Judgment dated September 21, 2012 finding accused-
appellant guilty as charged.
On August 29, 2014, the CA promulgated its Decision holding that "the combination of
all the circumstances presented by the prosecution does not produce a conviction
beyond reasonable doubt against [accused-appellant] for the crime of rape."9 The CA
found that the evidence of the prosecution failed to establish that [accused-appellant]
had carnal knowledge of AAA."10 What the classmates of AAA saw was that accused-
appellant fondled her vagina. The CA also held that the admission of AAA to her mother
that accused-appellant sexually abused her may not be considered as part of the res
gestae because such was not spontaneously and voluntarily made. The CA,
nonetheless, held that accused-appellant may be convicted of the crime of acts of
lasciviousness as the said crime is included in the crime of rape, and the elements of
which were sufficiently established during trial.
The CA did not commit error in finding accused-appellant not liable for rape.
In the present case, the combination of all the circumstances presented by the
prosecution does not produce a conviction beyond reasonable doubt against Edwin for
the crime of rape.
Here, the evidence of the prosecution failed to establish that Edwin had carnal
knowledge of AAA. Michael's testimony did not show that Edwin had carnal knowledge
with AAA. He only testified that he saw Edwin holding AAA's vagina. x x x
Clearly, Michael and Jemie's testimonies failed to prove that Edwin inserted his penis
[into] AAA's vagina. What they saw was only his act of fondling AAA's private part
which is not rape.
Nonetheless, the Court agrees with the ruling of the CA that accused-appellant is guilty
of the crime of acts of lasciviousness. Under the variance doctrine embodied in Section
4,18 in relation to Section 5,19 Rule 120 of the Rules of Criminal Procedure and affirmed
by settled jurisprudence,20 even though the crime charged against the accused was for
rape through carnal knowledge, he can be convicted of the crime of acts of
lasciviousness without violating any of his constitutional rights because said crime is
included in the crime of rape.
The ruling of the CA finding accused-appellant guilty of the crime of acts of

lasciviousness is based on the testimonies of the two classmates of the victim, AAA,
who saw accused-appellant fondle the latter's vagina.
The CA found accused-appellant guilty of the crime of acts of lasciviousness, under

Article 336 of the RPC, in relation to Section 5 (b), Article III of RA 7610, which defines
and penalizes acts of lasciviousness committed against a child, as follows:
The essential elements of this provision are:
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 subjected to other
sexual abuse.
3. The child, whether male or female, is below 18 years of age.32
As to the first element. Records show that the prosecution duly established this element
when the witnesses positively testified that accused-appellant fondled AAA's vagina
sometime in October 2004.
The second element requires that the lascivious conduct be committed on a child who is
either exploited in prostitution or subjected to other sexual abuse.33 This second
element requires evidence proving that: (a) AAA was either exploited in prostitution or
subjected to sexual abuse; and (b) she is a child as defined under RA 7610.34
Anent the third element, there is no dispute that AAA was four years old at the time of
the commission of the crime. Thus, on the basis of the foregoing, the Court finds that
the CA correctly found accused-appellant guilty of the crime of acts of lasciviousness
under Article 336 of the RPC in relation to Section 5 (b), Article III of RA 7610

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G.R. No.

219889, January 29, 2018

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. EDWIN DAGSA Y BANTAS @

The ruling of the CA finding accused-appellant guilty of the crime of acts of

The CA found accused-appellant guilty of the crime of acts of lasciviousness, under

The essential elements of this provision are:

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

3. The child, whether male or female, is below 18 years of age.32

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