Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 179031               November 14, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

DECISION

DEL CASTILLO, J.:

This case involves a father’s detestable act of abusing his daughter through rape by sexual assault.

Factual Antecedents

Accused-appellant Benjamin Soria y Gomez (appellant) seeks a review of the December 29, 2006
Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01442 which affirmed with
1 

modification the June 30, 2005 Judgment of the Regional Trial Court (RTC) of Quezon City, Branch
2 

94, in Criminal Case No. Q-01-98692. Said RTC Judgment found appellant guilty beyond reasonable
doubt of the crime of rape committed against his daughter "AAA", as described in an Information, the
3  4 

relevant portion of which reads:

That on or about the 26th day of February, 2000, in Quezon City, Philippines, the said accused, who
is the father of private complainant "AAA", did then and there willfully, unlawfully, and feloniously
with force and intimidation commit an act of sexual assault upon the person of one "AAA", a minor, 7
years of age[,] by then and there inserting his penis into [the] genital of said complainant, all against
her will and consent, which act debases, degrades, or demeans the intrinsic worth and dignity of
said "AAA", as a human being, in violation of said law.

CONTRARY TO LAW. 5

Appellant pleaded not guilty to the crime charged. Pre-trial and trial thereafter ensued.

Version of the Prosecution

On February 26, 2000, "AAA" and her siblings enjoyed the spaghetti their father (appellant) brought
home for merienda. After eating, "AAA" went to the bedroom to rest. Thereafter, appellant also
entered the room and positioned himself on top of "AAA", took off her clothes and inserted his penis
into her vagina. "AAA" felt intense pain from her breast down to her vagina and thus told her father
that it was painful. At that point, appellant apologized to his daughter, stood up, and left the room.
This whole incident was witnessed by "AAA’s" brother, "BBB".

The pain persisted until "AAA’s" vagina started to bleed. She thus told her aunt about it and they
proceeded to a hospital for treatment. Her mother was also immediately informed of her ordeal.
Subsequently, "AAA" was taken into the custody of the Department of Social Welfare and
Development.
On March 15, 2000, Medico-Legal Officer Francisco A. Supe, Jr., M.D. (Dr. Supe) examined "AAA",
which examination yielded the following results:

GENERAL AND EXTRA-GENITAL: Fairly developed, fairly nourished and coherent female child.
Breasts are undeveloped. Abdomen is flat and soft.

GENITAL: There is absent growth of pubic hair. Labia majora are full, convex, and coaptated with
light brown labia minora presenting in between. On separating the same, disclosed an elastic, fleshy
type, hyperemic and intact hymen. Posterior fourchette is sharp.

CONCLUSION: The subject is in virgin state physically. There are no external signs of application of
any form of physical trauma. 6

Version of the Defense

Appellant admitted that he was at home on the day and time of "AAA’s" alleged rape but denied
committing the same. Instead, he claimed that the filing of the rape case against him was instigated
by his wife, whom he confronted about her illicit affair with a man residing in their community.
According to appellant, he could not have molested "AAA" because he treated her well. In fact, he
was the only one sending his children to school since his wife already neglected them and seldom
comes home.

Ruling of the Regional Trial Court

On June 30, 2005, the trial court rendered its Judgment finding appellant guilty beyond reasonable
7 

doubt of the crime of rape against "AAA", his daughter of minor age, as charged in the Information. It
ruled that the lack of tenacious resistance on the part of "AAA" is immaterial considering that
appellant’s moral ascendancy and influence over her substitute for violence and intimidation. It also
8 

held that his wife could not have instigated the filing of the rape case since as the mother of "AAA", it
would not be natural for her to use her child as a tool to exact revenge especially if it will result in her
embarrassment and stigma. The trial court gave credence to the testimony of "AAA" and her positive
9 

identification of appellant as her rapist, and rejected the latter’s defense of denial. The dispositive
portion of the Judgment reads as follows:

WHEREFORE, premises considered, judgment is hereby rendered finding the herein accused,
BENJAMIN SORIA Y GOMEZ − GUILTY beyond reasonable doubt of the crime as charged and
sentences him to suffer the supreme penalty of DEATH and to indemnify the offended party the
amount of P75,000.00, to pay moral damages in the amount of P50,000.00, and the amount of
P25,000.00 as exemplary damages to deter other fathers with perverse proclivities for aberrant
sexual behavior for sexually abusing their own daughters.

SO ORDERED. 10

Ruling of the Court of Appeals

In its Decision dated December 29, 2006, the CA found partial merit in the appeal. While the
11 

appellate court was convinced that appellant raped "AAA", it nevertheless noted the prosecution’s
failure to present her birth certificate as competent proof of her minority. Thus, the CA concluded
that the crime committed by appellant against his daughter was only simple rape and accordingly
modified the penalty imposed by the trial court from death to reclusion perpetua and reduced the civil
indemnity awarded from P75,000.00 to P50,000.00. The dispositive portion of the appellate court’s
Decision reads as follows:

WHEREFORE, premises considered, the appeal is hereby GRANTED and the June 30, 2005
Decision of the Regional Trial Court of Quezon City, Branch 94, in Criminal Case No. Q-01-98692, is
hereby MODIFIED, in that, the penalty imposed is reduced to reclusion perpetua instead of death
and the civil indemnity to be paid by the offender to the victim is hereby reduced to the amount of
P50,000.00 instead of P75,000.00 pursuant to prevailing jurisprudence as explained in this decision.

Pursuant to Section 13(c), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M.
No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004, this
judgment of the Court of Appeals may be appealed to the Supreme Court by notice of appeal filed
with the Clerk of Court of the Court of Appeals.

SO ORDERED. 12

Still insisting on his innocence, appellant comes to this Court through this appeal.

Assignment of Errors

Appellant adopts the same assignment of errors he raised before the appellate court, viz:

I. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF THE
CRIME OF RAPE DESPITE THE FAILURE OF THE PROSECUTION TO OVERTHROW
THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE X X X.

II. ASSUMING ARGUENDO THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED,
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON HIM. 13

Appellant asserts that he should be acquitted of the crime of rape since there is no evidence that
would establish the fact of sexual intercourse. Aside from the prosecution’s failure to prove penile
contact, "AAA’s" testimony was also wanting in details as to how he took off her underwear or
whether she saw his penis during the incident despite leading questions propounded on the matter
by the prosecution. The medical report even revealed that "AAA’s" hymen remained intact and that
there were no notable lacerations or external physical injuries thereon. Appellant therefore surmises
that his wife merely instigated "AAA" to file this baseless rape case against him in retaliation for his
act of confronting her about her illicit relationship with a neighbor.

Our Ruling

The appeal lacks merit.

The crime of rape under Article 266-A of

Republic Act No. 8353, otherwise known as the Anti-Rape Law of 1997, classified the crime of rape
as a crime against persons. It also amended Article 335 of the RPC and incorporated therein Article
266-A which reads:

Article 266-A. Rape, When and How Committed. – Rape is committed –

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or is otherwise unconscious,

c) By means of fraudulent machination or grave abuse of authority;

d) When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present;

2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting his penis into another person’s mouth or
anal orifice, or any instrument or object, into the genital or anal orifice of another person.

Thus, rape can now be committed either through sexual intercourse or by sexual assault. Rape
under paragraph 1 of the above-cited article is referred to as rape through sexual intercourse. Carnal
knowledge is the central element and it must be proven beyond reasonable doubt. It is commonly
14 

denominated as "organ rape" or "penile rape" and must be attended by any of the circumstances
15 

enumerated in subparagraphs (a) to (d) of paragraph 1.

On the other hand, rape under paragraph 2 of Article 266-A is commonly known as rape by sexual
assault. The perpetrator, under any of the attendant circumstances mentioned in paragraph 1,
commits this kind of rape by inserting his penis into another person’s mouth or anal orifice, or any
instrument or object into the genital or anal orifice of another person. It is also called "instrument or
object rape", also "gender-free rape". 16

The Information did not specify whether

The Information in this case did not specify with certainty whether appellant committed the rape
through sexual intercourse under paragraph 1 of Article 266-A, or rape by sexual assault as
described in paragraph 2 thereof. The Information stated that appellant inserted his penis into the
genital of "AAA," which constituted rape by sexual intercourse under the first paragraph of Article
266-A. At the same time, the Information alleged that appellant used force and intimidation to
commit an act of sexual assault. While these allegations cause ambiguity, they only pertain to the
mode or manner of how the rape was committed and the same do not invalidate the Information or
result in the automatic dismissal of the case. "[W]here an offense may be committed in any of the
different modes and the offense is alleged to have been committed in two or more modes specified,
the indictment is sufficient, notwithstanding the fact that the different means of committing the same
offense are prohibited by separate sections of the statute. The allegation in the information of the
various ways of committing the offense should be regarded as a description of only one offense and
the information is not thereby rendered defective on the ground of multifariousness." Any objection
17 

from the appellant with respect to the Information is held to have been waived failing any effort to
oppose the same before trial. He therefore can be convicted of rape through sexual intercourse or
18 

rape by sexual assault, depending on the evidence adduced during trial.

The findings of the RTC and the CA on

and great weight.

Both the trial court and the CA held that "AAA" was a credible witness. They ruled that her testimony
deserved credence and is sufficient evidence that she was raped by appellant. We find no cogent
reason to overturn these findings.

It would be highly inconceivable for "AAA" to impute to her own father the crime of raping her unless
the imputation is true. In fact, it takes "a certain amount of psychological depravity for a young
19 

woman to concoct a story which would put her own father in jail for the rest of his remaining life and
drag the rest of the family including herself to a lifetime of shame" unless the imputation is true.
20 

When a rape victim’s testimony on the manner she was defiled is "straightforward and candid, and is
corroborated by the medical findings of the examining physician as in this case, the same is
sufficient to support a conviction for rape."
21

Appellant is guilty of rape by sexual

assault and not through sexual

intercourse.

The trial court’s conviction of the appellant was for rape through sexual intercourse under paragraph
1(a) of Article 266-A. The CA sustained the trial court’s finding that appellant had sexual intercourse
with "AAA" against her will.

In determining whether appellant is indeed guilty of rape through sexual intercourse under paragraph
1 of Article 266-A, it is essential to establish beyond reasonable doubt that he had carnal knowledge
of "AAA". There must be proof that his penis touched the labia of "AAA" or slid into her female organ,
and not merely stroked the external surface thereof, to ensure his conviction of rape by sexual
intercourse. 22 
1ªvvph!1

We reviewed the testimony of "AAA" and found nothing therein that would show that she was raped
through sexual intercourse. While "AAA" categorically stated that she felt something inserted into her
vagina, her testimony was sorely lacking in important details that would convince us with certainty
that it was indeed the penis of appellant that was placed into her vagina.

When "AAA" was placed on the witness stand, she narrated that:

Q - The earlier statement which you made when you said that you wanted to explain something
about your father, is that true?

A - Yes, sir.

Q - So, you said that you wanted to explain something about your father, what was that?

A - What he did, sir.

Q - What was that?

Q - What did he do when you said he raped you?

A - He laid on top of me, sir. 23

xxxx

Q - So when you said he laid on top of you, did you feel anything? Did you feel any pain in any part
of your body?

A - Yes, sir.

Q - In what part of your body did you feel pain?

A - I felt pain in my breast and my stomach.

Q - What about your private part?

A - Yes, sir.

Q - Did you know why your stomach as well as your body and your private part hurt or become
painful?

A - I don’t know, sir.

Q - Did you feel something inserted into your private part?

A - Yes, sir.

Q - What is that, if you know?

A - The bird of my papa.

Q - Why did you know that?

A - Because my brother, "BBB", told me.

Q - Why? Was "BBB", your brother, present when your father was on top of you?

A - Yes, sir.

Q - Why do you know that he was there?

A - He told me so, sir.

Q - Who?

A - "BBB".
Q - Okay, when you felt pain as something was inserted [into] your private part, what did you say to
your father?

A - He left the room.

Q - Before he went away and left?

A - It was painful, sir.

Q - And what was the answer of your father?

A - He said sorry, sir.

Q - How long was he or how long were you in that position, you were lying down and your father was
on top of you?

A - I do not know, sir. 24

xxxx

Q - Earlier, you were making reference to your father whom you said abused you. I am asking you
now to tell us if your father is around?

A - Yes, sir.

Q - Will you please point x x x to him?

A - Yes, sir. (Witness pointing to a man who is wearing yellow t-shirt and maong pants who when
asked identified himself as Benjamin Soria.)

Q - Is he the same person who according to you laid on top of you and inserted something into your
vagina or private part?

A - Yes, sir. 25

It is evident from the testimony of "AAA" that she was unsure whether it was indeed appellant’s
penis which touched her labia and entered her organ since she was pinned down by the latter’s
weight, her father having positioned himself on top of her while she was lying on her back. "AAA"
stated that she only knew that it was the "bird" of her father which was inserted into her vagina after
being told by her brother "BBB". Clearly, "AAA" has no personal knowledge that it was appellant’s
penis which touched her labia and inserted into her vagina. Hence, it would be erroneous to
conclude that there was penile contact based solely on the declaration of "AAA’s" brother, "BBB",
which declaration was hearsay due to "BBB’s" failure to testify. Based on the foregoing, it was an
error on the part of the RTC and the CA to conclude that appellant raped "AAA" through sexual
intercourse.

Instead, we find appellant guilty of rape by sexual assault. It cannot be denied that appellant inserted
an object into "AAA’s" female organ. "AAA" categorically testified that appellant inserted something
into her vagina. She claimed to have suffered tremendous pain during the insertion. The insertion
even caused her vagina to bleed necessitating her examination at the hospital. Both the trial court
and the CA found "AAA’s" testimony to be credible. We find no compelling reason not to lend
credence to the same.

This defilement constitutes rape under paragraph 2 of Article 266-A of the RPC, which provides that
rape by sexual assault is committed "by any person who, under any of the circumstances mentioned
in paragraph 1 hereof, shall commit an act of sexual assault by inserting x x x any instrument or
object, into the genital or anal orifice of another person."

Moreover, Dr. Supe corroborated her testimony as follows:

Q - Doctor, with respect to Exhibit A, the Medico-Legal Report pertaining to the entry into the genital,
which reads: On separating the hymen, disclosed was an elastic, fleshy type, hyperemic and intact
hymen. Will you please tell us, Doctor, what is this hyperemic hymen?

A - Hyperemic hymen, sir, means that at the time of examination, I found out that it was reddish in
color.

Q - Considering the age of the child or the patient, the victim whom you examined at that time who
was about 6 years old, will you be able to tell us, Doctor, what could have caused this kind of injury,
because this is an injury to the hymen?

A - Hyperemic, sir, is observed whenever there is friction applied to an area, such as in the form of
scratching.

Q - What about insertion of object, would this result into hyperemic hymen?

A - If the object is being rubbed, sir, there is a possibility.

Q - A finger will produce this kind of injury?

A - Possible, sir. 26

According to Dr. Supe, it is possible that "AAA’s" hyperemic hymen may be the result of the insertion
of a finger or object. While Dr. Supe said that the injury could also be attributed to scratching,
"AAA’s" testimony is bereft of any showing that she scratched her genital organ thus causing the
reddening. Appellant would also want to make it appear that the injury of "AAA" was the result of
friction from playing or riding a bicycle since the doctor testified that this was also possible. However,
there is likewise no evidence that friction was applied on "AAA’s" female organ when she played
hide and seek with her playmates or that she actually rode a bicycle. On the other hand, "AAA" was
categorical in stating that in the afternoon of February 26, 2000, appellant removed her clothes, laid
on top of her, and that she felt something being inserted into her vagina and that thereafter she
experienced pain in her genitals. The foregoing thus proved that appellant inserted an object into
"AAA’s" vagina against her will and without consent. Simply put, appellant committed the crime of
rape by sexual assault.

The following are the elements of rape by sexual assault:

(1) That the offender commits an act of sexual assault;

(2) That the act of sexual assault is committed by any of the following means:
 (a) By inserting his penis into another person’s mouth or anal orifice; or

(b) By inserting any instrument or object into the genital or anal orifice of another
person;

(3) That the act of sexual assault is accomplished under any of the following circumstances:

(a) By using force and intimidation;

(b) When the woman is deprived of reason or otherwise unconscious; or

(c) By means of fraudulent machination or grave abuse of authority; or

(d) When the woman is under 12 years of age or demented. 27

In the instant case, it was clearly established that appellant committed an act of sexual assault on
"AAA" by inserting an instrument or object into her genital. We find it inconsequential that "AAA"
could not specifically identify the particular instrument or object that was inserted into her genital.
What is important and relevant is that indeed something was inserted into her vagina. To require
"AAA" to identify the instrument or object that was inserted into her vagina would be contrary to the
fundamental tenets of due process. It would be akin to requiring "AAA" to establish something that is
not even required by law. Moreover, it might create problems later on in the application of the law if
the victim is blind or otherwise unconscious. Moreover, the prosecution satisfactorily established that
appellant accomplished the act of sexual assault through his moral ascendancy and influence over
"AAA" which substituted for violence and intimidation. Thus, there is no doubt that appellant raped
"AAA" by sexual assault.

Appellant’s contentions are untenable.

The failure of "AAA" to mention that her panty was removed prior to the rape does not preclude
sexual assault. We cannot likewise give credence to the assertion of appellant that the crime of rape
was negated by the medical findings of an intact hymen or absence of lacerations in the vagina of
"AAA". Hymenal rupture, vaginal laceration or genital injury is not indispensable because the same
is not an element of the crime of rape. "An intact hymen does not negate a finding that the victim
28 

was raped." Here, the finding of reddish discoloration of the hymen of "AAA" during her medical
29 

examination and the intense pain she felt in her vagina during and after the sexual assault
sufficiently corroborated her testimony that she was raped.

Likewise undeserving of credence is appellant’s contention that his wife merely instigated "AAA" to
file the charge of rape against him in retaliation for his having confronted her about her illicit affair
with another man. This imputation of ill motive is flimsy considering that it is unnatural for appellant’s
wife to stoop so low as to subject her own daughter to the hardships and shame concomitant with a
prosecution for rape, just to assuage her hurt feelings. It is also improbable for appellant’s wife to
30 

have dared encourage their daughter "AAA" to publicly expose the dishonor of the family unless the
rape was indeed committed. 31

Penalty

Under Article 266-B of the RPC, the penalty for rape by sexual assault is prision mayor. However,
the penalty is increased to reclusion temporal "if the rape is committed by any of the 10
aggravating/qualifying circumstances mentioned in this article". The Information alleged the
qualifying circumstances of relationship and minority. It was alleged that appellant is the father of
"AAA". During the pre-trial conference, the parties stipulated that "AAA" is the daughter of
appellant. During trial, appellant admitted his filial bond with "AAA". "Admission in open court of
32  33 

relationship has been held to be sufficient and, hence, conclusive to prove relationship with the
victim."
34

With respect to minority, however, the Information described "AAA" as a 7-year old daughter of
appellant. While this also became the subject of stipulation during the pre-trial conference, same is
insufficient evidence of "AAA’s" age. Her minority must be "proved conclusively and indubitably as
the crime itself". "There must be independent evidence proving the age of the victim, other than the
35 

testimonies of prosecution witnesses and the absence of denial by the accused." Documents such
36 

as her original or duly certified birth certificate, baptismal certificate or school records would suffice
as competent evidence of her age. Here, there was nothing on record to prove the minority of "AAA"
37 

other than her testimony, appellant’s absence of denial, and their pre-trial stipulation. The
38 

prosecution also failed to establish that the documents referred to above were lost, destroyed,
unavailable or otherwise totally absent. 39

It is settled that "when either one of the qualifying circumstances of relationship and minority is
omitted or lacking, that which is pleaded in the information and proved by the evidence may be
considered as an aggravating circumstance." As such, appellant’s relationship with "AAA" may be
40 

considered as an aggravating circumstance.

In view of these, the imposable penalty is reclusion temporal which ranges from twelve (12) years
and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the penalty next
lower in degree is prision mayor which ranges from six (6) years and one (1) day to twelve (12)
years. Hence, a penalty of twelve (12) years of prison mayor, as minimum, to twenty (20) years of
reclusion temporal, as maximum, is imposed upon appellant.

Damages

In line with prevailing jurisprudence, the awards of P50,000.00 as civil indemnity, P50,000.00 as
moral damages and P25,000.00 as exemplary damages are each modified to P30,000.00. "AAA" is 41 

also entitled to an interest on all the amounts of damages awarded at the legal rate of 6% per annum
from the date of finality of this judgment until fully paid.
42

WHEREFORE, the December 29, 2006 Decision of the Court of Appeals in CA-G.R. CR-H.C. No.
01442 is AFFIRMED with MODIFICATIONS. Accused-appellant Benjamin Soria y Gomez is found
guilty beyond reasonable doubt of the crime of rape by sexual assault and is sentenced to suffer the
penalty of twelve (12) years of prison mayor, as minimum, to twenty (20) years of reclusion temporal,
as maximum. He is also ordered to pay "AAA" the amounts of P30,000.00 as civil indemnity,
P30,000.00 as moral damages, and P30,000.00 as exemplary damages. "AAA" is entitled to an
interest on all damages awarded at the legal rate of 6% per annum from the date of finality of this
judgment until fully paid.

SO ORDERED.