EN BANC

G.R. Nos. 141154-56 January 15, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

BELLOSILLO, J.:

Traditionally, religious fervor nourishes love, respect and concern for one another among brethren; it was not so however in the case
of one whose adherence to his faith became the harbinger of his tragic end, sending his wife hanging by the thread of death, and
worse, the crimes were perpetrated apparently by their brethren professing to be "denizens of the temple."

Accused Fernando "Ando" Costales and Fernando Ramirez, the latter being still at large, stood charged with the murder of Miguel
Marcelo and the frustrated murder of Crispina Marcelo. As the perpetrators were found to be in unlawful possession of firearms they
were also charged with violation of PD 1866, as amended by RA 8294.

Since accused Fernando Ramirez remained at large, only accused Fernando "Ando" Costales was arraigned and tried.

For violation of Sec. 1, PD 1866, as amended (Crim. Case No. T-2054), accused Fernando "Ando" Costales was found guilty and
sentenced1 to an indeterminate penalty of six (6) months of arresto mayor as minimum to six (6) years of prision correccional as
maximum, and to pay a fine of ₱30,000.

For the murder of Miguel Marcelo (Crim. Case No. T-2057), accused Fernando "Ando" Costales was found guilty and meted the ultimate
penalty of death.

For the frustrated murder of Crispina Marcelo (Crim. Case No. T-2056) he was found guilty only of attempted murder and sentenced to
an indeterminate penalty of six (6) years of prision correccional as minimum to twelve (12) years of prision mayor as maximum.
Additionally, he was ordered "to pay the heirs of the two (2) victims ₱250,000.00 in damages to be shared by and among them in a
manner that suits them best."

Sitio Raniag, Barangay Capas, was a placid but forlorn barrio in Pangasinan where the spouses Miguel and Crispina Marcelo resided in
a small one-room shanty with concrete flooring and cogon roofing. Although their married daughters Donabel, Jessie and Erlinda
already had their own houses they would spend the night with them every once in a while. And so it was on the night of 27 November
1997.

Jessie Molina recalled that at around 11:30 o'clock in the evening of 27 November 1997, she and her sisters Donabel and Erlinda
together with their parents Miguel and Crispina had taken their own corners of their small house to prepare for the night. Miguel
laid in a folding bed beside the door while the others occupied a bamboo bed with the exception of Jessie who for want of available
space settled instead on the concrete floor. Jessie and Erlinda had just watched tv when two (2) persons suddenly barged into their
house passing through the door kept ajar by sacks of palay and strangled her father Miguel. Jessie readily recognized the two (2)
intruders because the entire room was illuminated by a nightlamp which the family kept burning overnight.

Jessie narrated that Fernando "Ando" Costales, one of the assailants, poked a gun at the head of her father and shot him once in cold
blood. Thereafter the other assailant Fernando Ramirez sprayed on their faces what she described as "something hot and pungent," and
with his firearm pumped a bullet on her mother's chest.

Erlinda Marcelo was also awakened when the two (2) accused suddenly entered their house and strangled their father after which
Fernando Costales shot him point blank in the head. According to Erlinda, when tear gas was sprayed by Ramirez, she ducked and almost
simultaneously she heard a gunshot towards the direction of her mother. When she opened her eyes, she saw her mother Crispina
clutching her breast, reeling from the blow and collapsing on the floor in a heap. In her testimony Crispina herself confirmed that
Ramirez shot her once on the right chest which caused her to bleed and lose consciousness. 1âwphi1.nêt

Both Jessie and Erlinda affirmed that they were familiar with the two (2) accused because, like the rest of the family, they were
members of the "Baro a Cristiano" also known as Lamplighter, of which Fernando "Ando" Costales and Fernando Ramirez were the high
priests in their respective areas. According to Jessie, her parents decided to quit the brotherhood because Ramirez warned them not
to sever their ties with the sect if they did not want any harm to befall them. In fact, according to her, a month earlier Ramirez
even threatened her sister Erlinda with bodily harm.

Like her sister, Erlinda stated that their family distanced themselves from the congregation when Ramirez threatened her father.
According to her, on 16 November 1997, Miguel tried to fetch her from the house of Ramirez but Miguel relented only after Ramirez
threatened her with a bolo. Her father tried to get her when he learned that Ramirez was molesting her every time his wife was away.
She however did not report this matter immediately to the authorities because she feared for her life.

Dr. Alex E. Trinidad, Rural Health Physician of Umingan, Pangasinan, after conducting an autopsy on the body of Miguel Marcelo
reported: (a) The gunshot wound penetrating the left lobe of the liver of deceased Miguel Marcelo was fatal; (b) Considering the
trajectory of the gunshot wound, the assailant was probably pointing slightly downward; (c) The cause of death of the deceased was
internal hemorrhage arising from the gunshot wound; and, (d) Considering the wound of the victim, he could have survived for a few
minutes after he was shot.

To show that he could not have been a party to the crimes charged, accused Fernando Costales gave a detailed account of his
activities by retracing his steps from late afternoon of 27 November 1997 until dawn of the following day. He narrated that at 5:00
o'clock in the afternoon of 27 November he was irrigating his land in Barangay Libeg, then proceeded to a nearby chapel to pray. At
past 7:00 o'clock in the evening, he went to see a certain Isidro who was irrigating his own land with the use of his (Fernando's)
water pump. That being done he went back home.

A couple of hours later, in the company of his wife and children, he returned to the mission house to attend another religious
service. At past 9:00 o'clock that same evening he dropped by Isidro's farmland to verify if the latter had finished irrigating. He
went back home at around 11:00 o'clock to sleep and was awakened by Isidro at about 11:45 o'clock only to inform him that he (Isidro)
was through. When Isidro left, Fernando went back to sleep only to be roused again by Gregorio Baguio who also wanted to borrow his
water pump. With his sleep disrupted, he decided around midnight to visit as he did the nearby mission house to pray. Shortly after,
he resumed his sleep but woke up again at 4:00 o'clock in the morning to see if Baguio had already finished watering his farm.

Defense witnesses Isidro Costales and Gregorio Baguio corroborated the claim of Fernando Costales that he could not have perpetrated
the crimes as he was with them all the time they were irrigating their farms. Likewise, Elvie Costales, wife of accused Fernando
Costales, presented an "attendance notebook," purportedly prepared by her, showing that her husband, who was the chapter's religious
leader, was worshipping in the Barangay Libeg chapel from 4:45 to 4:47 o'clock and from 5:30 to 5:37 o'clock at daybreak,2 from 7:22
to 8:00 o'clock after sunset,3 and from 12:10 to 12:15 o'clock midnight4 of 27 November 1997, although he would periodically leave
the prayer meeting to check if Isidro had already finished watering his farm so that Baguio could also use the pump.

But the trial court viewed the alibi of the defense with askance and assigned full credit to the declarations of the prosecution
witnesses.

In disbelieving the veracity of the "attendance notebook," the court a quo opined that Exh. "2" could have been more impressive had
it borne the confirming signatures or thumbmarks of the "Baro a Cristiano" faithful, including their leader Fernando Costales, or had
Exhs. "2-B" and "2-C" been corroborated on the witness stand by a less interested member, or had the church secretary who allegedly
kept record of attendance been some member other that Mrs. Costales or the nearest of kin.5

The court below also virtually jettisoned the testimonies of Isidro Costales and Gregorio Baguio when it said that "they had every
reason to come to the rescue of the accused Costales, their admittedly common nephew." Further, it pointed out that the accused and
his witnesses issued contradictory and irreconcilable statements when, on one hand Isidro testified that before midnight of 27
November 1997 he went to the house of his nephew Fernando Costales to inform him that the irrigation of his farm was already through;
on the other hand, Baguio claimed that at around 11:00 o'clock that night he roused the accused who thereafter went to operate the
pump and stayed put beside it until Baguio's farm was completely irrigated at 4:00 o'clock the next morning.

The above statements, the court a quo observed, did not jibe with those made by the accused that his uncle Isidro woke him up at
around 11:45 o'clock in the evening and told him that the irrigation of his farm was finished, after which he returned to bed and
when he awakened at past 4:00 o'clock the following morning, he met Baguio who told him that he too was through irrigating.

In contrast, the trial court saw no dark motives behind the respective testimonies of Crispina Marcelo and her two (2) daughters. The
Costaleses and the Marcelos used to be members of the same religious sect and accused "Ando" Costales even stood as a sponsor at the
wedding of Jessie Marcelo, and again when Crispina's brother got married. In short, the Marcelos could not have mistaken "Ando"
Costales and Fernando Ramirez for other felons.

In this automatic review, accused Fernando Costales takes exception to the findings of the trial court and thus seeks reversal of his
convictions on the ground that it erred: (a) in according credence to the testimonies of the prosecution witnesses although the same
are perforated with material inconsistencies and bias; (b) in not giving weight to the defense of alibi despite the weakness of the
prosecution evidence; (c) in convicting him of violation of Sec. 1, PD 1866, as amended, since the same was absorbed in the crime of
murder; (d) in finding that the crime was attended by conspiracy despite the fact that no aggravating circumstance was established
beyond reasonable doubt; and, (e) in not appreciating the mitigating circumstance of voluntary surrender in his favor.

The first and second assigned errors will be discussed jointly since they are interrelated.

Accused-appellant argues that the seemingly flawless and unwavering testimonies of the three (3) key prosecution witnesses on the
assault of the Marcelo household are obviously biased that they invite suspicion and disbelief.

Concededly, the prosecution witnesses gave almost uniform observations on how the malefactors carried out their detestable crimes,
i.e., the identity of the assailants, that Miguel was strangled by both intruders and almost simultaneously shot on the head, that
one of them sprayed a chemical on the other occupants of the house and after a split second fired at Crispina. Such consistency and
uniformity may be irregular at first blush, but accused-appellant failed to take into account the following factors which account for
the "near flawless" statements of the prosecution witnesses: (a) the one-room shanty was very small with no substantial obstruction
to impede the vision of the occupants; (b) the room was lighted by a kerosene lamp sufficient enough for the occupants to recognize
accused-appellant and his cohort, especially so since the assailants were prominent and venerated leaders of their church; and, (c)
at the time of the incident the Marcelo spouses and their children were lying very near each other because of the very limited space
of their shanty such that every perceived action could be seen, felt, or at least sensed, by all of them.

Accused-appellant is seeing ghosts where there is none. Contrary to his submission, it would be highly irregular indeed if the
prosecution witnesses failed to observe the events that transpired on that fateful night of 27 November 1997 and their statements did
not dovetail, at least on material points, despite very favorable conditions for a fairly accurate observation.1âwphi1.nêt

Neither should we ascribe importance, as the accused-appellant seems to suggest, to an apparent "inconsistency" by witness Jessie
Molina when she mentioned that the unwanted intrusion occurred shortly after she turned off the television set, contrary to her
earlier claim that barangay Capas was without electricity. Jessie Molina dispelled this obscurity when she clarified that the
television set was powered by Motolite battery which is in fact a common practice in unenergized "barrios," as the trial court would
put it,6 and Sitio Raniag, Barangay Capas did not still have electricity at that time.

Clearly, the straightforward and consistent narration of facts, as the trial court observed, by the three (3) prosecution witnesses,
especially Crispina Marcelo, a victim herself, immensely fortifies the conclusion that accused-appellant is guilty as charged.
Moreover, no impure motive on their part has been established by the defense to sully their truthfulness and erode their credibility.

Accused-appellant cannot insist on his alibi, especially so since he and his co-accused were positively identified by the prosecution
witnesses. More so when it is undisputed that the proximity of their place to the scene of the crimes did not preclude the
possibility that they were in fact present at the time of their commission.

On the third issue, accused-appellant decries the Decision of the court a quo in qualifying the crimes of murder and attempted murder
with illegal possession of firearm and at the same time convicting him for violation of PD 1866, as amended.

We agree. Although the prosecution duly established that the crime of illegal possession of firearm under PD 1866 was committed, RA
8294, which took effect 7 July 1997, amended the decree and now considers the use of unlicensed firearm as a special aggravating
circumstance in murder and homicide, and not as a separate offense.7

As it should be, possession and use of firearm without license should aggravate the crimes of murder and frustrated murder as herein
charged but, fortunately for accused-appellant, Secs. 8 and 9 of the Revised Rules on Criminal Procedure, which took effect 1
December 2000, now require the qualifying as well as aggravating circumstances to be expressly and specifically alleged in the
complaint or information, otherwise the same will not be considered by the court even if proved during the trial. Withal, in the
absence of any allegation in the Information in Crim. Case No. T-2057 that accused-appellant committed murder with the use of
unlicensed firearm, the same cannot be appreciated in imposing the proper penalty.

Moving now to the modifying circumstances raised under the fourth assigned error, accused-appellant points out that the trial court
grievously erred in appreciating unlicensed firearm, evident premeditation and nighttime which were alleged in the Informations in
Crim. Case No. T-2056 for frustrated murder and Crim. Case No. T-2057 for murder.

While we yield to the trial court's finding of treachery, we take exception to its view that evident premeditation and nighttime also
aggravated the offenses. Without doubt, treachery has been established by the prosecution evidence which showed that accused-
appellant Fernando Costales and his confederate Fernando Ramirez swiftly and unexpectedly barged into the Marcelo residence in the
middle of the night, shot Miguel Marcelo to death as well as his wife Crispina who almost lost her life, and sprayed a substance
which temporarily blinded the other occupants of the house. The suddenness of the attack gave the victims no opportunity what soever
to resist or parry the assault thereby ensuring the accomplishment of their dastardly deed without risk to themselves. Since the
attack on the victims was synchronal, sudden and unexpected, treachery must be properly appreciated.

We cannot however give our assent to the view that nighttime and evident premeditation accompanied the commission of the crimes. The
aggravating circumstance of nighttime is absorbed by treachery,8 while evident premeditation cannot be appreciated in the absence of
proof of the planning and preparation to kill or when the plan was conceived.9

The convergence of the wills of the two (2) executioners amply justifies the imputation that they acted in concert and in unity in
their unlawful objective when in the stillness of the night they both crashed into the Marcelo residence, strangulated the victim
Miguel, then one of them shot him in the head while the other sprayed tear gas on the other members of the family obviously to
disable them, and thereafter pumped a bullet at the horrified Crispina. This series of actions betrays a concerted design and
concurrence of sentiments to cause mayhem and murder. Accordingly, conspiracy was properly appreciated by the trial court.

Neither can we sympathize with accused-appellant's misplaced sentiment that he had been denied the mitigating circumstance of
voluntary surrender. As found by the trial court, his alleged surrender was made too late, and in a place too distant from the crime
site as well as his place of residence.10

We observe that the trial court awarded ₱250,000.00 to the heirs of the deceased on the justification that the same had been
stipulated upon by the parties. This is patently wrong. Award of damages is dictated, not by the agreement of the parties; worse, "in
a manner that suits them best,"11 but by the mandate of law and jurisprudence. Accordingly in conformity with established law and
jurisprudence, the award of ₱50,000.00 as civil indemnity and another ₱50,000.00 as moral damages should be awarded to the heirs of
the victim.

Pursuant to Art. 248 of The Revised Penal Code as amended by RA 7659, the penalty for murder is reclusion perpetua to death. There
being no modifying circumstances found in Crim. Case No. T-2057, and applying par. 2 of Art. 63 of the Code, the lesser penalty of
reclusion perpetua shall be imposed.

In Crim. Case No. T-2056, accused-appellant was charged by the trial court with frustrated murder but was convicted only for
attempted murder. In its Decision, the trial court explained that the failure of the prosecution to present a medical certificate or
competent testimonial evidence showing that Crispina would have died from her wound without medical intervention, justified the
accused's conviction for attempted murder only.

We call to mind People v. De La Cruz11a where this Court ruled that the crime committed for the shooting of the victim was attempted
murder and not frustrated murder for the reason that "his injuries, though no doubt serious, were not proved fatal such that without
timely medical intervention, they would have caused his death." In fact, as early as People v. Zaragosa,12 we enunciated the doctrine
that where there is nothing in the evidence to show that the wound would be fatal if not medically attended to, the character of the
wound is doubtful; hence, the doubt should be resolved in favor of the accused and the crime committed by him may be declared as
attempted, not frustrated murder. 1âwphi1.nêt

WHEREFORE, the assailed Decision finding accused-appellant Fernando "Ando" Costales guilty of murder and attempted murder is AFFIRMED
with the following MODIFICATION: In Crim. Case No. T-2057, the crime of murder not being considered to have been attended by any
generic mitigating or aggravating circumstances, accused-appellant Fernando "Ando" Costales is sentenced to suffer only the penalty
of reclusion perpetua. In Crim. Case No. T-2056, the crime of attempted murder not likewise considered to have been attended by any
generic mitigating or aggravating circumstances, accused-appellant Fernando "Ando" Costales is accordingly sentenced in addition to
his penalty imposed in Crim. Case No. T-2057 herein before mentioned, to suffer an indeterminate prison term of two (2) years and
four (4) months of prision correccional medium as minimum, to eight (8) years and six (6) months of prision mayor minimum as maximum;

Accused-appellant Fernando "Ando" Costales is further ordered to pay the heirs of the victim Miguel Marcelo ₱50,000.00 as death
indemnity and another ₱50,000.00 as moral damages.

SO ORDERED.

Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr.,
Sandoval-Gutierrez, and Carpio, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 182748 December 13, 2011

ARNEL COLINARES, Petitioner,

D E C I S I O N

ABAD, J.:

This case is about a) the need, when invoking self-defense, to prove all that it takes; b) what distinguishes frustrated homicide
from attempted homicide; and c) when an accused who appeals may still apply for probation on remand of the case to the trial court.

The Facts and the Case

The public prosecutor of Camarines Sur charged the accused Arnel Colinares (Arnel) with frustrated homicide before the Regional Trial
Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-2213.1

Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June 25, 2000, he and Jesus Paulite (Jesus) went
out to buy cigarettes at a nearby store. On their way, Jesus took a leak by the roadside with Rufino waiting nearby. From nowhere,
Arnel sneaked behind and struck Rufino twice on the head with a huge stone, about 15 ½ inches in diameter. Rufino fell unconscious as
Jesus fled.

Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying by the roadside. Ananias tried to help but
someone struck him with something hard on the right temple, knocking him out. He later learned that Arnel had hit him.

Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be smoking outside his house. He sought the
help of a barangay tanod and they brought Rufino to the hospital.

Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that Rufino suffered two lacerated wounds on the forehead, along the
hairline area. The doctor testified that these injuries were serious and potentially fatal but Rufino chose to go home after initial
treatment.

The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-defense. He testified that he was on his way home
that evening when he met Rufino, Jesus, and Ananias who were all quite drunk. Arnel asked Rufino where he supposed the Mayor of
Tigaon was but, rather than reply, Rufino pushed him, causing his fall. Jesus and Ananias then boxed Arnel several times on the back.
Rufino tried to stab Arnel but missed. The latter picked up a stone and, defending himself, struck Rufino on the head with it. When
Ananias saw this, he charged towards Arnel and tried to stab him with a gaff. Arnel was able to avoid the attack and hit Ananias with
the same stone. Arnel then fled and hid in his sister’s house. On September 4, 2000, he voluntarily surrendered at the Tigaon
Municipal Police Station.

Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party on the night of the incident. His three
companions were all drunk. On his way home, Diomedes saw the three engaged in heated argument with Arnel.

On July 1, 2005 the RTC rendered judgment, finding Arnel guilty beyond reasonable doubt of frustrated homicide and sentenced him to
suffer imprisonment from two years and four months of prision correccional, as minimum, to six years and one day of prision mayor, as
maximum. Since the maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify for probation.

Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking conviction for the lesser crime of
attempted homicide with the consequent reduction of the penalty imposed on him. The CA entirely affirmed the RTC decision but deleted
the award for lost income in the absence of evidence to support it.3 Not satisfied, Arnel comes to this Court on petition for review.

In the course of its deliberation on the case, the Court required Arnel and the Solicitor General to submit their respective
positions on whether or not, assuming Arnel committed only the lesser crime of attempted homicide with its imposable penalty of
imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum, he could
still apply for probation upon remand of the case to the trial court.
Both complied with Arnel taking the position that he should be entitled to apply for probation in case the Court metes out a new
penalty on him that makes his offense probationable. The language and spirit of the probation law warrants such a stand. The
Solicitor General, on the other hand, argues that under the Probation Law no application for probation can be entertained once the
accused has perfected his appeal from the judgment of conviction.

The Issues Presented

The case essentially presents three issues:

1. Whether or not Arnel acted in self-defense when he struck Rufino on the head with a stone;

2. Assuming he did not act in self-defense, whether or not Arnel is guilty of frustrated homicide; and

3. Given a finding that Arnel is entitled to conviction for a lower offense and a reduced probationable penalty, whether or not he
may still apply for probation on remand of the case to the trial court.

The Court’s Rulings

One. Arnel claims that Rufino, Jesus, and Ananias attacked him first and that he merely acted in self-defense when he hit Rufino back
with a stone.

When the accused invokes self-defense, he bears the burden of showing that he was legally justified in killing the victim or
inflicting injury to him. The accused must establish the elements of self-defense by clear and convincing evidence. When successful,
the otherwise felonious deed would be excused, mainly predicated on the lack of criminal intent of the accused.4

In homicide, whether consummated, frustrated, or attempted, self-defense requires (1) that the person whom the offender killed or
injured committed unlawful aggression; (2) that the offender employed means that is reasonably necessary to prevent or repel the
unlawful aggression; and (3) that the person defending himself did not act with sufficient provocation.5

If the victim did not commit unlawful aggression against the accused, the latter has nothing to prevent or repel and the other two
requisites of self-defense would have no basis for being appreciated. Unlawful aggression contemplates an actual, sudden, and
unexpected attack or an imminent danger of such attack. A mere threatening or intimidating attitude is not enough. The victim must
attack the accused with actual physical force or with a weapon.6

Here, the lower courts found that Arnel failed to prove the element of unlawful aggression. He alone testified that Jesus and Ananias
rained fist blows on him and that Rufino and Ananias tried to stab him. No one corroborated Arnel’s testimony that it was Rufino who
started it. Arnel’s only other witness, Diomedes, merely testified that he saw those involved having a heated argument in the middle
of the street. Arnel did not submit any medical certificate to prove his point that he suffered injuries in the hands of Rufino and
his companions.7

In contrast, the three witnesses—Jesus, Paciano, and Ananias—testified that Arnel was the aggressor. Although their versions were
mottled with inconsistencies, these do not detract from their core story. The witnesses were one in what Arnel did and when and how
he did it. Compared to Arnel’s testimony, the prosecution’s version is more believable and consistent with reality, hence deserving
credence.8

Two. But given that Arnel, the accused, was indeed the aggressor, would he be liable for frustrated homicide when the wounds he
inflicted on Rufino, his victim, were not fatal and could not have resulted in death as in fact it did not?

The main element of attempted or frustrated homicide is the accused’s intent to take his victim’s life. The prosecution has to
prove this clearly and convincingly to exclude every possible doubt regarding homicidal intent.9 And the intent to kill is often
inferred from, among other things, the means the offender used and the nature, location, and number of wounds he inflicted on his
victim.10

Here, Arnel struck Rufino on the head with a huge stone. The blow was so forceful that it knocked Rufino out. Considering the great
size of his weapon, the impact it produced, and the location of the wounds that Arnel inflicted on his victim, the Court is convinced
that he intended to kill him.

The Court is inclined, however, to hold Arnel guilty only of attempted, not frustrated, homicide. In Palaganas v. People,11 we ruled
that when the accused intended to kill his victim, as shown by his use of a deadly weapon and the wounds he inflicted, but the victim
did not die because of timely medical assistance, the crime is frustrated murder or frustrated homicide. If the victim’s wounds are
not fatal, the crime is only attempted murder or attempted homicide.

Thus, the prosecution must establish with certainty the nature, extent, depth, and severity of the victim’s wounds. While Dr.
Belleza testified that "head injuries are always very serious,"12 he could not categorically say that Rufino’s wounds in this case
were "fatal." Thus:
Q: Doctor, all the injuries in the head are fatal?

A: No, all traumatic injuries are potentially treated.

Q: But in the case of the victim when you treated him the wounds actually are not fatal on that very day?

A: I could not say, with the treatment we did, prevent from becoming fatal. But on that case the patient preferred to go home at that
time.

Q: The findings also indicated in the medical certificate only refers to the length of the wound not the depth of the wound?

A: When you say lacerated wound, the entire length of the layer of scalp.

Q: So you could not find out any abrasion?

A: It is different laceration and abrasion so once the skin is broken up the label of the frontal lo[b]e, we always call it lacerated
wound, but in that kind of wound, we did not measure the depth.13

Indeed, Rufino had two lacerations on his forehead but there was no indication that his skull incurred fracture or that he bled
internally as a result of the pounding of his head. The wounds were not so deep, they merely required suturing, and were estimated to
heal in seven or eight days. Dr. Belleza further testified:

Q: So, in the medical certificate the wounds will not require surgery?

A: Yes, Madam.

Q: The injuries are slight?

A: 7 to 8 days long, what we are looking is not much, we give antibiotics and antit[e]tanus – the problem the contusion that
occurred in the brain.

x x x x

Q: What medical intervention that you undertake?

A: We give antibiotics, Your Honor, antit[e]tanus and suturing the wounds.

Q: For how many days did he stay in the hospital?

A: Head injury at least be observed within 24 hours, but some of them would rather go home and then come back.

Q: So the patient did not stay 24 hours in the hospital?

A: No, Your Honor.

Q: Did he come back to you after 24 hours?

A: I am not sure when he came back for follow-up.14

Taken in its entirety, there is a dearth of medical evidence on record to support the prosecution’s claim that Rufino would have
died without timely medical intervention. Thus, the Court finds Arnel liable only for attempted homicide and entitled to the
mitigating circumstance of voluntary surrender.

Three. Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the judgment of the RTC
convicting him for frustrated homicide.

But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and holds that the maximum of the penalty imposed on
him should be lowered to imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision
correccional, as maximum. With this new penalty, it would be but fair to allow him the right to apply for probation upon remand of
the case to the RTC.

Some in the Court disagrees. They contend that probation is a mere privilege granted by the state only to qualified convicted
offenders. Section 4 of the probation law (PD 968) provides: "That no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of conviction."15 Since Arnel appealed his conviction for frustrated
homicide, he should be deemed permanently disqualified from applying for probation.

But, firstly, while it is true that probation is a mere privilege, the point is not that Arnel has the right to such privilege; he
certainly does not have. What he has is the right to apply for that privilege. The Court finds that his maximum jail term should only
be 2 years and 4 months. If the Court allows him to apply for probation because of the lowered penalty, it is still up to the trial
judge to decide whether or not to grant him the privilege of probation, taking into account the full circumstances of his case.

Secondly, it is true that under the probation law the accused who appeals "from the judgment of conviction" is disqualified from
availing himself of the benefits of probation. But, as it happens, two judgments of conviction have been meted out to Arnel: one, a
conviction for frustrated homicide by the regional trial court, now set aside; and, two, a conviction for attempted homicide by the
Supreme Court.

If the Court chooses to go by the dissenting opinion’s hard position, it will apply the probation law on Arnel based on the trial
court’s annulled judgment against him. He will not be entitled to probation because of the severe penalty that such judgment imposed
on him. More, the Supreme Court’s judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to
the trial court’s judgment—even if this has been found in error. And, worse, Arnel will now also be made to pay for the trial
court’s erroneous judgment with the forfeiture of his right to apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa
kalabaw (the horse errs, the carabao gets the whip). Where is justice there?

The dissenting opinion also expresses apprehension that allowing Arnel to apply for probation would dilute the ruling of this Court
in Francisco v. Court of Appeals16 that the probation law requires that an accused must not have appealed his conviction before he
can avail himself of probation. But there is a huge difference between Francisco and this case.

In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty of grave oral defamation and sentenced him to a
prison term of one year and one day to one year and eight months of prision correccional, a clearly probationable penalty. Probation
was his to ask! Still, he chose to appeal, seeking an acquittal, hence clearly waiving his right to apply for probation. When the
acquittal did not come, he wanted probation. The Court would not of course let him. It served him right that he wanted to save his
cake and eat it too. He certainly could not have both appeal and probation.

The Probation Law, said the Court in Francisco, requires that an accused must not have appealed his conviction before he can avail
himself of probation. This requirement "outlaws the element of speculation on the part of the accused—to wager on the result of his
appeal—that when his conviction is finally affirmed on appeal, the moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an ‘escape hatch’ thus rendering nugatory the appellate court’s affirmance of
his conviction."17

Here, however, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did not have a choice
between appeal and probation. He was not in a position to say, "By taking this appeal, I choose not to apply for probation." The
stiff penalty that the trial court imposed on him denied him that choice. Thus, a ruling that would allow Arnel to now seek probation
under this Court’s greatly diminished penalty will not dilute the sound ruling in Francisco. It remains that those who will appeal
from judgments of conviction, when they have the option to try for probation, forfeit their right to apply for that privilege.

Besides, in appealing his case, Arnel raised the issue of correctness of the penalty imposed on him. He claimed that the evidence at
best warranted his conviction only for attempted, not frustrated, homicide, which crime called for a probationable penalty. In a way,
therefore, Arnel sought from the beginning to bring down the penalty to the level where the law would allow him to apply for
probation.

In a real sense, the Court’s finding that Arnel was guilty, not of frustrated homicide, but only of attempted homicide, is an
original conviction that for the first time imposes on him a probationable penalty. Had the RTC done him right from the start, it
would have found him guilty of the correct offense and imposed on him the right penalty of two years and four months maximum.lavvphil
This would have afforded Arnel the right to apply for probation.

The Probation Law never intended to deny an accused his right to probation through no fault of his. The underlying philosophy of
probation is one of liberality towards the accused. Such philosophy is not served by a harsh and stringent interpretation of the
statutory provisions.18 As Justice Vicente V. Mendoza said in his dissent in Francisco, the Probation Law must not be regarded as a
mere privilege to be given to the accused only where it clearly appears he comes within its letter; to do so would be to disregard
the teaching in many cases that the Probation Law should be applied in favor of the accused not because it is a criminal law but to
achieve its beneficent purpose.19

One of those who dissent from this decision points out that allowing Arnel to apply for probation after he appealed from the trial
court’s judgment of conviction would not be consistent with the provision of Section 2 that the probation law should be interpreted
to "provide an opportunity for the reformation of a penitent offender." An accused like Arnel who appeals from a judgment convicting
him, it is claimed, shows no penitence.
This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however, it convicted Arnel of the
wrong crime, frustrated homicide, that carried a penalty in excess of 6 years. How can the Court expect him to feel penitent over a
crime, which as the Court now finds, he did not commit? He only committed attempted homicide with its maximum penalty of 2 years and
4 months.

Ironically, if the Court denies Arnel the right to apply for probation under the reduced penalty, it would be sending him straight
behind bars. It would be robbing him of the chance to instead undergo reformation as a penitent offender, defeating the very purpose
of the probation law.

At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two years and four
months maximum, he would have had the right to apply for probation. No one could say with certainty that he would have availed
himself of the right had the RTC done right by him. The idea may not even have crossed his mind precisely since the penalty he got
was not probationable.

The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for probation when the new
penalty that the Court imposes on him is, unlike the one erroneously imposed by the trial court, subject to probation?

WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision dated July 31, 2007 of the Court of Appeals in CA-G.R. CR
29639, FINDS petitioner Arnel Colinares GUILTY beyond reasonable doubt of attempted homicide, and SENTENCES him to suffer an
indeterminate penalty from four months of arresto mayor, as minimum, to two years and four months of prision correccional, as
maximum, and to pay Rufino P. Buena the amount of ₱20,000.00 as moral damages, without prejudice to petitioner applying for
probation within 15 days from notice that the record of the case has been remanded for execution to the Regional Trial Court of San
Jose, Camarines Sur, in Criminal Case T-2213.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

ANTONIO T. CARPIO
Associate Justice PRESBITERO J. VELASCO, JR.
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice JOSE CATRAL MENDOZA
Associate Justice
MARIA LOURDES P. A. SERENO
Associate Justice BIENVENIDO L. REYES
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA
Chief Justice
FIRST DIVISION

G.R. No. 133918 September 13, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

D E C I S I O N

PUNO, J.:

For the Navarro family of Lasang, Davao City, the usual burst of firecrackers on New Year's Eve of 1993 was muted by the resounding
gunshots that snuffed out the life of Teresita Navarro and wounded her husband, Florencio Navarro. The accused, Tiboy Albacin, was
the author of the dastardly acts.

On March 10, 1994, an information was filed charging the accused Albacin with murder in Criminal Case No. 33,512-94, viz:

"That on or about December 31, 1993, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the
above-mentioned accused, conspiring, confederating and helping with (sic) one John Doe, armed with a gun, with treachery and intent
to kill, wilfully (sic), unlawfully and feloniously shot Teresita G. Navarro, thereby inflicting upon the latter gunshot wounds which
caused her instantaneous death.

Contrary to law."1

On the same day, another information was filed charging the accused with frustrated murder in Criminal Case No. 33, 513-94, viz:

"That on or about December 31, 1993, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the
above-mentioned accused, conspiring, confederating and helping with one John Doe, armed with a gun, with treachery and intent to
kill, wilfully (sic), unlawfully, and feloniously attacked and shot with said gun one Florencio S. Navarro hitting his right hand and
chest through and through, which injuries would ordinarily cause the death of the said Florencio S. Navarro, thus performing all the
acts of execution which should have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of
causes independent of his will, that is, by the timely and able medical assistance rendered to the said Florencio S. Navarro that
prevented his death.

Contrary to law."2

The records show that on December 31, 1993, at about 9:00 p.m., Teresita Navarro, together with her husband, Florencio Navarro, and
their two daughters were on their way to church to attend the New Year's Eve mass. Coming from their house, they passed through a
two-meter wide muddy path between ramie plants in Lasang Poblacion, Davao del Norte.3 The ramie plants were thickly planted and
reached up to the shoulders of a grown man.4 Florencio walked about twenty meters behind his daughters while Teresita was about four
meters behind him. Although it was a moonlit night, Teresita held a torch to light her way. All of a sudden, Florencio heard a
gunshot from behind. He immediately looked back and saw his wife lying on the ground. The torch she was holding fell but continued to
burn. With the light coming from the moon and the torch, Florencio saw the accused Albacin approaching him, coming from where his
wife was. He recognized Albacin because he personally knew him as his neighbor for more than twenty years.5 Then another man wearing
a big hat emerged from the ramie plants and approached Florencio on his right side. At a distance of about half a meter at the right
front side of Florencio, Albacin pointed a gun at Florencio's forehead. Albacin then fired his gun twice, the first shot hitting
Florencio on his right back hand and the second shot grazing the middle portion of his chest. The other man then fired at Florencio's
right waist but his pistol jammed.6

Florencio fled from the crime scene and caught up with his daughters and told them that their mother had been shot and was feared to
be dead. Together, they headed to the Lasang Police Substation.7 When they got there, Florencio told the police that he was shot
twice, but did not reveal the identity of his assailant because he was not in his right mind. He asked for help for him to be brought
to the hospital.8 Florencio, along with one of his daughters, Carmela, were brought to the Davao Medical Center.9 His other daughter
went home. PO Paul Quilisado, the desk officer at the substation, entered the report in the police blotter. Another daughter of
Florencio, Teresa Sabac, got wind of the shooting incident and also arrived at the substation. From there, she called up her younger
brother who later arrived at the substation and was interviewed by the policemen about the name and age of Florencio. Teresa, along
with a policeman named Rufino Dayag, went to her father in the hospital.10 Another policeman, PO2 Rodel Estrellan, called up the
Bunawan Police Station for assistance.11 SPO1 San Nicolas Palado received the call and entered in the blotter the shooting of
Florencio and Teresita Navarro. Palado then informed their station commander about the incident and immediately, the commander,
Inspector Ano-os, two other policemen and a CAFGU member from the Bunawan Police Station went to the Lasang Substation,12 and
together with PO2 Estrellan proceeded to the crime scene.13 The police team found the lifeless body of Teresita Navarro on a private
road, lying on her side with her face, neck, chest and clothes burned. A lighted torch standing one meter from the feet of the body
clearly lighted it.14 The body was then brought to the house of Teresita's in-laws who lived nearby.15 At about 10:00 p.m., the team
of policemen returned to the Lasang Substation and entered in the police blotter the identity of the victims.16 At 1:00 a.m., January
1, 1994, the team from Bunawan Police Station returned there.17

Meanwhile, Florencio was treated by Dr. Alden Bagarra, a resident surgeon at the Davao Medical Center. He sustained a non-
penetrating, grazing gunshot wound on the anterior chest and a penetrating gunshot wound on the space between the thumb and the index
finger of his right hand. Both wounds were not serious.18 Dr. Bagarra testified that if the wound on the right hand was left
untreated, infection would probably set in in 48 hours, and eventually cause general infection leading to death. But he also
testified that even a small cut if left unattended could cause infection eventually leading to death if left without medical
attention.19 In the medical certificate that Dr. Bagarra prepared, he indicated that the probable healing time of the wounds was
fifteen days barring complication.20 From the location of the wounds, Dr. Bagarra concluded that the assailant was probably on
Florencio's side at a distance of more than two feet.21 At the hospital, the police asked Florencio about the shooting incident.
Again, he did not tell the police who the assailant was because he was still not in his right mind.22 At about 10:00 the following
morning, Florencio was discharged from the hospital. He then went to his father-in-law's house for the wake of his wife.23

During the wake, Florencio refused to reveal the identity of the assailant and told Teresa that he would avenge the death of
Teresita. On January 2, 1994, however, he told Teresa that the accused Albacin was the culprit. Teresa dissuaded her father from
taking revenge and prevailed upon him to file a case instead. On January 3, 1994, Florencio, with Teresa, went to the police station
to report that it was the accused Albacin who killed his wife and shot him twice.24 His report was entered by Inspector Ano-os in the
police blotter. He executed an affidavit narrating the shooting incident.25 About a week thereafter, before his wife was buried,
Florencio also reported to Barangay Captain Git Navarro that it was the accused Albacin who shot him twice.26 After his wife was
buried, Florencio revealed to his mother-in-law that Albacin shot his wife.27

Florencio testified that prior to the shooting incident, the family of the accused Albacin already held a grudge against the Navarro
family. The Albacins suspected that the accused's brother was killed by the New People's Army (NPA) upon instruction of the Navarro
family because after the killing, the NPA's headed towards the direction of the Navarro residence. In one instance, the mother of the
accused Albacin had an altercation and exchanged hot words with the victim, Teresita.28

Teresa corroborated Florencio's testimony. She testified that the older brother of the accused was killed by the NPA in October 1993.
Teresa was able to read, however, a letter left by the NPA near the body of the older Albacin which stated the offenses committed by
the accused against the NPA and that he (the accused) could not be forgiven and should be killed by the NPA. She was told by her
mother that the family of the accused suspected their family to have given instructions to the NPA to kill the older Albacin.29

Dr. Danila Ledesma, Medico-Legal Officer of the Davao City Health Office, also took the witness stand. He examined the body of the
victim, Teresita Navarro, at 7:00 a.m. of January 1, 1994, but the victim's daughter refused to have the body autopsied. His findings
show that Teresita sustained a gunshot wound at the left back portion of her head. This was the bullet's point of entry. The point of
exit was a star-shaped wound in the upper eyelid portion. There were no other abrasions or contusions on her body. The probable cause
of Teresita's death was the gunshot wound on her head. Dr. Ledesma surmised that because of the location of the wounds sustained by
Teresita, the assailant was probably standing behind her slightly on the left side. He also concluded that the gun was fired within
two feet from the victim.30

The accused Albacin had a different story to tell. He testified that he was born in Lasang and resided there until he became a cook
of the 75th Infantry Batallion Charlie Company from October 23, 1993 up to 1995, and resided in their camp in Cacao, Panabo, Davao
del Norte. During this whole period, he never returned to their house in Lasang.

On December 31, 1993, he was at the camp. He woke up at 5:00 a.m. and cooked breakfast until 8:00 a.m. At 10:00 a.m., he started
preparing lunch. From 1:00 to 5:00 p.m., he took a rest in the sleeping quarters. In the afternoon, he started cooking dinner at 5:00
p.m. and finished at 8:00 p.m. He then cleaned the cooking utensils until 8:30 p.m. From 8:30 p.m. to 11:00 p.m., he joined six
soldiers drinking Tanduay at their post in the camp. He was the "gunner" (the person pouring drink into the soldiers' glasses). From
11:00 p.m. to 12:00 p.m., a certain Pfc. Oscar Tongson and he started preparing food for the New Year celebration. At 12:00 midnight,
the soldiers partook of the food. The accused Albacin again became the "gunner" from 12:30 a.m. to 2:00 a.m. of January 1, 1994. At
2:00 a.m., he went to bed at the bunkhouse.31

The accused Albacin also testified that to get to Lasang from Cacao, he has to take a jeep going to Panabo for one and a half hours.
From Panabo, he has to take another jeep going to Lasang for ten minutes. The last trip of these jeeps is at 7:00 p.m. He also
admitted that he knew the Navarro family since he was seven years old. The Navarros lived ten minutes away from his house, and would
pass by his house on the way to church in Lasang poblacion. He, however, denied having any misunderstanding with them.32 When asked
about his brother who was allegedly shot by the NPA's in October 1993, he could recall the year when he was shot, but not the month
because according to him, that was a long time ago already.33 On cross-examination, however, he testified that he was killed on
October 29, 1993.
Herman Bermoy, brother-in-law of William Albacin (brother of the accused Albacin) testified that the accused left Lasang and resided
in the camp of the 75th infantry batallion after William was killed on October 29, 1993. He did not come back to Lasang until he was
apprehended in the camp in November 1995 in connection with the instant case. He visited the accused in the camp for the first time
in January 1995. Coming from his office in the Lasang market place, it took him only fifteen minutes to get to the camp, and about 25
minutes to return to his office. The second time Bermoy visited the accused was in February 1995. In both visits, he informed the
accused Albacin that a case was filed against him for the death of Teresita Navarro and the wounding of Florencio Navarro. The
accused was surprised. Bermoy advised the accused Albacin to surrender to the authorities. Albacin agreed to do so but never did.
Inconsistent with his earlier testimony that the accused was apprehended in the camp in Cacao, Bermoy stated that the accused
surrendered in Bunawan in November 1995.34

Pfc. Danilo Buchan, a soldier at the 75th infantry batallion camp, also took the witness stand. He came to know the accused Albacin
when the latter became a cook in their camp in Cacao, Panabo, Davao del Norte from July or August 1993 up to 1995.35 On December 31,
1993, he saw the accused Albacin and another civilian cook, Cesar Caseñas, cook breakfast. The soldiers had breakfast at 7:00 a.m.
Again, he saw the accused Albacin and Caseñas preparing lunch. Later, at 4:00 p.m., Albacin and Caseñas prepared supper. At 5:30
p.m., the soldiers took their dinner and finished in fifteen minutes. Shortly after 5:45 p.m., a group of soldiers composed of
Morillo, Oscar Tongson, Joe Cales, Buchan, and another soldier instructed Albacin to buy Tanduay "lapad" while Caseñas cleaned the
kitchen. Albacin bought the liquor at a store about fifteen to twenty meters away from the group's post in the camp. At 7:00 p.m.,
the group had consumed their drink and instructed Albacin to buy another bottle. Buchan's group consumed a total of six "lapad"
bottles that night. At 1:00 a.m. of January 1, 1994, the group finished drinking and Albacin turned in to sleep while some of the
other soldiers took their post. The whole time they were drinking, accused Albacin was beside Buchan acting as "gunner" of the group.
However, in his affidavit executed about two months after the shooting of the Navarros, Buchan stated that his group's drinking spree
started at 3:00 p.m. of December 31, 1993 and ended at 10:00 that night. When confronted with his affidavit on cross-examination, he
stated that their drinking spree ended at 10:00 p.m. Buchan also testified that Cacao is fifteen to twenty kilometers away from
Lasang.36

Oscar Tongson also took the witness stand. He met the accused in 1990 at the Panabo market. Thereafter, upon Tongson's
recommendation, the accused Albacin became a cook of the 75th Charlie Company in Cacao from May 1993 to 1995. On December 31, 1993,
he saw Albacin cooking in the camp. From 1:00 p.m. to 5:00 p.m., Albacin helped Tongson prepare the food for the New Year
celebration. From 5:00 p.m. to 7:00 p.m., Albacin joined the group of Buchan, Murillo, Dizon, Español and Tongson on a drinking spree
of Tanduay "lapad" near the camp's kitchen. He would shuttle back and forth from the kitchen where he was preparing food to Tongson's
group.37 From 7:00 p.m. to 10:00 p.m., the accused, along with some soldiers, helped Tongson prepare the food. From 10:00 p.m. to
11:00 p.m., they prepared the food on the table. At 11:00 p.m., they gathered themselves. Thereafter, at 12:00 midnight, Albacin
served the food and the soldiers ate. When they finished eating, Albacin cleaned up the cooking utensils.38

On cross-examination, however, Tongson narrated that on December 31, 1993, he saw the accused sitting at the post of the camp. At
4:00 p.m., he saw the accused in the kitchen of the camp. The latter was still in the kitchen at 5:00 p.m. A group of soldiers
including Albacin and he started drinking Tanduay in the camp at 6:00 p.m. They consumed six Tanduay "lapad" bottles until 10:00 p.m.
Thereafter, they prepared food from 10:00 p.m. to 12:00 midnight in the kitchen. At 12:00 midnight up to 1:00 a.m., they ate.
Afterwards, they resumed drinking Tanduay "lapad" until 2:00 a.m. of January 1, 1994. Tongson went to bed at 2:00 a.m. That morning,
he saw the accused cooking at 7:00 a.m.39

On rebuttal, Gilbert Navarro, Barangay Captain of Lasang, took the witness stand. He testified that Lasang is the last barangay of
Davao City. Its boundary is Panabo. Between Lasang and Cacao, a barangay in Panabo, there are two barangays. From Lasang, Cacao can
be reached via the national highway. Alternatively, a barangay road where jeeps, trucks, and motorcycles pass may be taken. The
distance between these two barangays via the barangay road is about eight kilometers.40

Florencio Navarro was recalled on rebuttal. He testified that when he would buy pigs, he would always traverse by foot the distance
between Lasang poblacion to the 75th infantry batallion camp in Cacao. Walking at a slow pace, it would take him one hour to cover
the distance of only six kilometers because the camp is at the edge of Barangay Katipunan which is only five kilometers away from
Lasang. Barangay Katipunan is adjacent to Barangay Cacao. The distance of eight kilometers from Lasang to Cacao, on the other hand,
refers to the center of Cacao. He reiterated that the accused Albacin shot both his wife and himself (Florencio).41

The trial court sustained the prosecution's version of the shooting incident and ruled, viz:

"WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime charged in the two informations, without any modifying
circumstances attendant:

In Criminal Case No. 33,512-94 for Murder, he is hereby sentenced to Reclusion Perpetua, and to pay the cost; to indemnify the
offended party the sum of P50,000.00 as compensatory damages for the death of Teresita Navarro and P29,000.00 for actual damages for
burial expenses.

In Criminal Case No. 33,513-94 for Frustrated Murder, he is hereby sentenced to an indeterminate penalty of seven (7) years, one (1)
day of Prision Correccional Maximum to Prision Mayor Medium as the minimum range to thirteen (13) years and one (1) day of Prision
Mayor Maximum to Reclusion Temporal medium as the maximum range and to pay the cost."42
Hence this appeal by the accused Albacin with the following assignment of errors:

I.

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED, NOTWITHSTANDING THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.

II.

THE COURT A QUO ERRED IN GIVING CREDENCE TO THE IDENTIFICATION MADE BY FLORENCIO S. NAVARRO.

The appeal is partly meritorious in both cases of murder and frustrated murder.

We first deal with Criminal Case No. 33,512-94 for murder. The defense faults the trial court for taking Florencio Navarro's word
that the accused Albacin was the perpetrator of the crime considering that it took him three days before he revealed the assailant's
identity. In the accused's Brief, he punctures Florencio's testimony, viz:

". . . the identification made by Florencio was clearly an afterthought on his part. . . It is altogether possible that Florencio
never really saw who his assailant was but because of his desire to take revenge upon his assailant, he tried to picture who he was
in his mind."43 (emphasis supplied)

We cannot subscribe to the accused's contention anchored in the realm of possibilities. In a criminal case, moral certainty and not
merely possibilities determines the guilt or innocence of the accused. The positive identification made by Florencio lends such
degree of certainty enough for this Court to conclude that the accused Albacin was responsible for the untimely demise of Teresita
Navarro. Upon hearing the gunshot which snuffed out the life of his wife, Florencio immediately looked back and saw the accused
Albacin coming from his fallen wife and approaching him. Albacin then pointed a gun to Florencio's head.

The accused was the only person Florencio saw with his fallen wife immediately after he heard a gunshot from where his wife was. With
the light coming from the moon and Teresita's torch, Florencio was able to recognize the accused Albacin who has been his neighbor
for more than twenty years. He testified as follows:

"Q: While walking in that position, your daughter ahead of you 20 meters and your wife 4 meters (sic), you said you heard a gunshot?

A: Yes, sir, I heard a gunshot.

Q: What was your reaction when you heard that gunshot?

A: I looked at my (sic) back and saw my wife already fell down.

Q: What else did you see aside from see (sic) your wife already fell down?

A: What I saw was the same person (sic) and he approached me.

Q: How many persons did you see aside from your wife?

A: Only one. Later on, there was another one who approached me.

Q: You said a person, when you turned your back and saw your wife fell down you saw a person was approaching you. Who is that person
who approached you?

A. I do not know, sir, he was wearing a hat.

Q: Earlier you pointed to the accused. What did the accused do after your wife fell?

A: That is why after that, he approached me and pointed a gun at me.

COURT:

Q: When you saw the accused you saw the accused approaching you where did he come from?

A: From the place where my wife fell down."44 (emphasis supplied)

Dr. Ledesma, the medico-legal expert who examined Teresita's body, testified that Teresita probably died of the gunshot wound she
sustained on her head. He also concluded that she was shot from within two feet. Albacin carried a gun with which he shot Florencio.
These circumstances lead us to no other conclusion than that the accused Albacin fatally shot Teresita. Direct evidence, i.e., an
eyewitness account of the commission of the crime, is not always necessary to identify the accused as the perpetrator of the crime. A
witness may not have actually seen the very act of commission of a crime, but he may nevertheless identify the accused as the
assailant as when the latter is the person or one of the persons last seen with the victim immediately before and right after the
commission of the crime.45 sustain the conviction of an accused through circumstantial evidence, the rules on evidence and
jurisprudence require that: (1) there must be more than one circumstance; (2) the inference must be based on proven facts; and (3)
the combination of all circumstances produces a conviction beyond reasonable doubt of the guilt of the accused.46

Contrary to accused Albacin's allegation, the three-day delay in Florencio's identification of the accused Albacin as the assailant
does not erode his credibility. We have previously ruled that delay in revealing the author of the crime does not impair the
credibility of witnesses, more so if such delay is satisfactorily explained.47 Florencio admitted that initially, he was not able to
reveal the identity of the assailant because he was not in his right mind immediately after the shooting incident. A few days after
the dastardly act was committed, he refused to reveal the identity of the perpetrator of the crimes because he wanted to take revenge
against the accused Albacin. It was only upon insistence of his daughter Teresa that he was prevailed upon to report to the
authorities the identity of the assailant and accordingly file a case against him.

The accused Albacin has not succeeded in destroying the credibility of Florencio. It is worth noting that the trial court found
Florencio's testimony "sincere, clear, convincing, and straightforward."48 Well-settled is the rule that a witness who testifies in a
categorical, straightforward, spontaneous and frank manner and remains consistent is a credible witness.49 The trial court also ruled
that the "(e)vidence is completely wanting of any motive or reason for the complainant Florencio Navarro to falsely testify against
the accused for crimes as heinous as that charged." Well-entrenched in our jurisprudence is the rule that where there is no evidence
that the principal witnesses of the prosecution were actuated by ill-motive, their testimony is entitled to full faith and credit.50

On the other hand, in a bid to exculpate himself, the accused interposed the defense of denial and alibi. These defenses prove futile
when juxtaposed with Florencio's positive identification of accused Albacin as Teresita's and his assailant. Considered as inherently
weak defenses, alibi and denial must be buttressed by other convincing evidence of non-culpability to merit credibility.51 It all the
more fails in light of the positive identification made by a credible witness who has no ill-motive to testify against the accused as
in the case at bar.52

Moreover, for the defense of alibi to prosper, it must be proved that it was physically impossible for the accused to have been at
the scene of the crime at the approximate time of its commission.53 The accused has failed to adduce such evidence. As borne out by
the testimony of defense witness Bermoy, the camp in Cacao where Albacin allegedly spent the New Year's Eve was only about fifteen to
twenty-five minutes away from Lasang by jeep. The prosecution witnesses also stated that the distance between Lasang and the camp is
about five to eight kilometers. Thus, even if the accused Albacin was seen at the camp on New Year's Eve, it was not physically
impossible for him to have gone to Lasang at the time the crimes were committed and gone back to the camp in Cacao.

We disagree with the trial court's finding, however, that treachery attended the killing of Teresita.1âwphi1 Treachery exists when
the following facts are shown: (1) the employment of means of execution that gives the person attacked no opportunity to defend
himself or to retaliate; and (2) the deliberate and conscious adoption of the means of execution.54 Moreover, this Court has
previously held that where treachery is alleged, the manner of attack must be proven. Absent any particulars on the manner in which
the aggression commenced or how the act which resulted in the victim's death unfolded, treachery cannot be appreciated.55 Florencio
testified that Teresita Navarro walked four meters behind him. Florencio did not therefore witness the manner his wife was attacked
by accused Albacin. He looked back to his wife only after he heard the fatal gunshot and saw Teresita already fallen. There is a
dearth of evidence whether Teresita had no opportunity to defend herself or to retaliate, nor on whether the means of execution was
consciously adopted even assuming arguendo that the attack was sudden.56

In light of the absence of any circumstance to qualify the accused Albacin's killing of Teresita Navarro to murder, we find him
guilty beyond reasonable doubt of homicide. Accordingly, the penalty imposed upon the accused Albacin should be lowered to reclusion
temporal in its medium period, there being no aggravating or mitigating circumstance. Applying the Indeterminate Sentence Law, the
minimum term is anywhere within the range of prision mayor, or from six (6) years and one (1) day to twelve (12) years, and the
maximum within the range of reclusion temporal in its medium period, or from fourteen (14) years, eight (8) months and one (1) day to
seventeen (17) years and four (4) months.57

We now come to the charge of frustrated murder in Criminal Case No. 33,513-94. The trial court convicted accused Albacin of
frustrated murder upon the person of Florencio Navarro based on Florencio's identification of Albacin as his assailant and the
testimony of Dr. Alden Bagarra, resident surgeon of Davao Medical Center, who treated Florencio's gunshot wounds. Florencio testified
that after hearing a gunshot from behind, he looked back. With the light coming from the moon and Teresita's torch, he saw the
accused Albacin walking towards him. Albacin then pointed a gun at Florencio's forehead and at a distance of about half a meter from
him, Albacin fired a penetrating shot into Florencio's right hand and a grazing shot on his chest. Florencio's testimony was
corroborated by Dr. Bagarra who testified that Florencio sustained a grazing, non-penetrating gunshot wound on the chest and a
penetrating wound on the right hand, on the space between the index finger and the thumb. Of the two, the latter is a more serious
wound which if left untreated, infection would probably set in in 48 hours, and eventually cause general infection leading to death.

Accused Albacin's use of a gun in assaulting Florencio on the same occasion that he shot and killed Teresita shows his intent to kill
Florencio. In Araneta, Jr. v. Court of Appeals58 where the accused inflicted only a slight gunshot wound on the victim, we ruled
that, "(t)he use of a gun fired at another certainly leads to no other conclusion than that there is intent to kill." Neverth eless,
we cannot sustain the trial court's conviction of the accused Albacin of frustrated murder.

Dr. Bagarra's statements regarding the nature of the wounds inflicted upon Florencio should be taken in the proper context. Indeed,
Dr. Bagarra declared that in comparison to the gunshot wound sustained by Florencio on his chest, the wound on his right hand was
more serious. But he also testified that both wounds on Florencio's chest and hand were not serious.59 While Dr. Bagarra testified
that if the wound on Florencio's right hand is left untreated, infection would probably set in in 48 hours and eventually cause
general infection leading to death, he also stated that even a small non-fatal cut if left unattended could cause infection
eventually leading to death if left without medical attention. The possible infection eventually leading to death cannot therefore be
the basis for concluding that the gunshot wound on Florencio's right hand was of such nature that it would have been fatal were it
not for timely medical intervention.

The doctrinal rule is that where the wound inflicted on the victim is not life threatening, the accused not having performed all the
acts of execution that would have brought about death, the crime committed is only attempted murder.60 In the instant case, however,
there being no circumstance to qualify the assault upon Florencio to attempted murder, the crime committed with respect to Criminal
Case No. 33,513-94 is attempted homicide. Art. 249 of the Revised Penal Code provides the penalty of reclusion temporal for the crime
of homicide. Under Art. 51 of the Revised Penal Code, the penalty for an attempted crime is two degrees lower than that prescribed by
law. Attempted homicide is thus punishable by prision correccional. Applying the Indeterminate Sentence Law, the minimum penalty to
be meted out on the accused Albacin should be anywhere within the range of one (1) month and one (1) day to six (6) months of arresto
mayor, and the maximum should be within the range of six (6) months and one (1) day to six (6) years of prision correccional.
Considering that no aggravating or mitigating circumstance attended the commission of the crime, the accused Albacin shall be
sentenced to an indeterminate prison term of two (2) months and one (1) day of arresto mayor as minimum, to two (2) years, four (4)
months and one (1) day of prision correccional medium as maximum.61

Anent the damages awarded for the death of Teresita Navarro, we find that the award of ₱50,000.00 is in accord with settled
jurisprudence. The appellee cites People v. Esteban Victor62 in claiming that the award should be raised to ₱75,000.00. This
contention is without merit. As we held in People v. Jose,63 the Victor case increased the award of indemnity in rape cases that are
effectively qualified by any of the circumstances which calls for the death penalty and has no application to a prosecution for
murder or, as in the instant case, homicide.64 The amount of ₱29,000.00 cannot be awarded as actual damages as only ₱10,130.00 finds
support from the evidence on record.

IN VIEW WHEREOF, the impugned decision is MODIFIED. In Criminal Case No. 33,512-94, the accused-appellant is found guilty of Homicide
and sentenced to an indeterminate sentence of eight (8) years and one (1) day of prision mayor medium as minimum, and fourteen (14)
years, eight (8) months and one (1) day of reclusion temporal medium as maximum, and to pay ₱50,000.00 for civil indemnity and ₱
10,000.00 for funeral and other related expenses. In Criminal Case No. 33, 513-94, the accused-appellant is found guilty of Attempted
Homicide and sentenced to suffer imprisonment of arresto mayor in its medium period or from two (2) months and one (1) day as
minimum, and two (2) years, four(4) months and one (1) day of prision correccional as maximum, and to pay ₱130.00 for medical
expenses and to pay the costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, and Pardo, JJ., concur.

FIRST DIVISION

G.R. No. 88724 April 3, 1990

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

The Office of the Solicitor General for plaintiff-appellee.

MEDIALDEA, J.:

The accused, Ceilito Orita alias Lito, was charged with the crime of rape in Criminal Case No. 83-031-B before the Regional Trial
Court, Branch II, Borongan, Eastern Samar. The information filed in the said case reads as follows (p. 47, Rollo):

The undersigned Second Assistant Provincial Fiscal upon prior complaint under oath by the offended party, accuses CEILITO ORITA alias
LITO of the crime of Rape committed as follows:

That on March 20, 1983, at about 1:30 o'clock in the morning inside a boarding house at Victoria St., Poblacion, Borongan, Eastern
Samar, Philippines, and within the jurisdiction of this Honorable Court, above named accused with lewd designs and by the use of a
Batangas knife he conveniently provided himself for the purpose and with threats and intimidation, did, then and there wilfully,
unlawfully and feloniously lay with and succeeded in having sexual intercourse with Cristina S. Abayan against her will and without
her consent.

CONTRARY TO LAW.

Upon being arraigned, the accused entered the plea of not guilty to the offense charged. After the witnesses for the People testified
and the exhibits were formally offered and admitted, the prosecution rested its case. Thereafter, the defense opted not to present
any exculpatory evidence and instead filed a Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the
dispositive portion of which reads (pp. 59-60, Rollo):

WHEREFORE. the Court being morally certain of the guilt of accused CEILITO ORITA @ LITO, of the crime of Frustrated Rape (Art. 335,
RPC), beyond reasonable doubt, with the aggravating circumstances of dwelling and nightime (sic) with no mitigating circumstance to
offset the same, and considering the provisions of the Indeterminate Sentence Law, imposes on accused an imprisonment of TEN (10)
YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify CRISTINA S. ABAYAN, the
amount of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment in case of insolvency, and to pay costs.

SO ORDERED.

Not satisfied with the decision, the accused appealed to the Court of Appeals. On December 29, 1988, the Court of Appeals rendered
its decision, the dispositive portion of which reads (p. 102, Rollo):

WHEREFORE, the trial court's judgment is hereby MODIFIED, and the appellant found guilty of the crime of rape, and consequently,
sentenced to suffer imprisonment of reclusion perpetua and to indemnify the victim in the amount of P30,000.00.

SO ORDERED.

On January 11, 1989, the Court of Appeals issued a resolution setting aside its December 29, 1988 decision and forwarded the case to
this Court, considering the provision of Section 9, paragraph 3 of Batas Pambansa Blg. 129 in conjunction with Section 17, paragraph
3, subparagraph 1 of the Judiciary Act of 1948.

The antecedent facts as summarized in the People's brief are as follows (pp. 71-75, Rollo):
Complainant Cristina S. Abayan was a 19-year old freshman student at the St. Joseph's College at Borongan, Eastern Samar. Appellant
was a Philippine Constabulary (PC) soldier.

In the early morning of March 20, 1983, complainant arrived at her boarding house. Her classmates had just brought her home from a
party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left, she knocked at the door of her boarding house (p. 5, ibid).
All of a sudden, somebody held her and poked a knife to her neck. She then recognized appellant who was a frequent visitor of another
boarder (pp. 8-9, ibid).

She pleaded with him to release her, but he ordered her to go upstairs with him. Since the door which led to the first floor was
locked from the inside, appellant forced complainant to use the back door leading to the second floor (p. 77, ibid). With his left
arm wrapped around her neck and his right hand poking a "balisong" to her neck, appellant dragged complainant up the stairs (p. 14,
ibid). When they reached the second floor, he commanded her to look for a room. With the Batangas knife still poked to her neck, they
entered complainant's room.

Upon entering the room, appellant pushed complainant who hit her head on the wall. With one hand holding the knife, appellant
undressed himself. He then ordered complainant to take off her clothes. Scared, she took off her T-shirt. Then he pulled off her bra,
pants and panty (p. 20, ibid).

He ordered her to lie down on the floor and then mounted her. He made her hold his penis and insert it in her vagina. She followed
his order as he continued to poke the knife to her. At said position, however, appellant could not fully penetrate her. Only a
portion of his penis entered her as she kept on moving (p. 23, ibid).

Appellant then lay down on his back and commanded her to mount him. In this position, only a small part again of his penis was
inserted into her vagina. At this stage, appellant had both his hands flat on the floor. Complainant thought of escaping (p. 20,
ibid).

She dashed out to the next room and locked herself in. Appellant pursued her and climbed the partition. When she saw him inside the
room, she ran to another room. Appellant again chased her. She fled to another room and jumped out through a window (p. 27, ibid).

Still naked, she darted to the municipal building, which was about eighteen meters in front of the boarding house, and knocked on the
door. When there was no answer, she ran around the building and knocked on the back door. When the policemen who were inside the
building opened the door, they found complainant naked sitting on the stairs crying. Pat. Donceras, the first policeman to see her,
took off his jacket and wrapped it around her. When they discovered what happened, Pat. Donceras and two other policemen rushed to
the boarding house. They heard a sound at the second floor and saw somebody running away. Due to darkness, they failed to apprehend
appellant.

Meanwhile, the policemen brought complainant to the Eastern Samar Provincial Hospital where she was physically examined.

Dr. Ma. Luisa Abude, the resident physician who examined complainant, issued a Medical Certificate (Exhibit "A") which states:

Physical Examination — Patient is fairly built, came in with loose clothing with no under-clothes; appears in state of shock, per
unambulatory.

PE Findings — Pertinent Findings only.

Neck- — Circumscribed hematoma at Ant. neck.

Breast — Well developed, conical in shape with prominent nipples; linear abrasions below (L) breast.

Back — Multiple pinpoint marks.

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

Vulva — No visible abrasions or marks at the perineal area or over the vulva, errythematous (sic) areas noted surrounding vaginal
orifice, tender, hymen intact; no laceration fresh and old noted; examining finger can barely enter and with difficulty; vaginal
canal tight; no discharges noted.

As aforementioned, the trial court convicted the accused of frustrated rape.

In this appeal, the accused assigns the following errors:

1) The trial court erred in disregarding the substantial inconsistencies in the testimonies of the witnesses; and

2) The trial court erred in declaring that the crime of frustrated rape was committed by the accused.
The accused assails the testimonies of the victim and Pat. Donceras because they "show remarkable and vital inconsistencies and its
incredibility amounting to fabrication and therefore casted doubt to its candor, truth and validity." (p. 33, Rollo)

A close scrutiny of the alleged inconsistencies revealed that they refer to trivial inconsistencies which are not sufficient to blur
or cast doubt on the witnesses' straightforward attestations. Far from being badges of fabrication, the inconsistencies in their
testimonies may in fact be justifiably considered as manifestations of truthfulness on material points. These little deviations also
confirm that the witnesses had not been rehearsed. The most candid witnesses may make mistakes sometimes but such honest lapses do
not necessarily impair their intrinsic credibility (People v. Cabato, G.R. No. L-37400, April 15, 1988, 160 SCRA 98). Rather than
discredit the testimonies of the prosecution witnesses, discrepancies on minor details must be viewed as adding credence and veracity
to such spontaneous testimonies (Aportadera et al. v. Court of Appeals, et al., G.R. No. L-41358, March 16, 1988, 158 SCRA 695). As a
matter of fact, complete uniformity in details would be a strong indication of untruthfulness and lack of spontaneity (People v.
Bazar, G.R. No. L-41829, June 27, 1988, 162 SCRA 609). However, one of the alleged inconsistencies deserves a little discussion which
is, the testimony of the victim that the accused asked her to hold and guide his penis in order to have carnal knowledge of her.
According to the accused, this is strange because "this is the only case where an aggressor's advances is being helped-out by the
victim in order that there will be a consumation of the act." (p. 34, Rollo). The allegation would have been meritorious had the
testimony of the victim ended there. The victim testified further that the accused was holding a Batangas knife during the
aggression. This is a material part of the victim's testimony which the accused conveniently deleted.

We find no cogent reason to depart from the well-settled rule that the findings of fact of the trial court on the credibility of
witnesses should be accorded the highest respect because it has the advantage of observing the demeanor of witnesses and can discern
if a witness is telling the truth (People v. Samson, G.R. No. 55520, August 25, 1989). We quote with favor the trial court's finding
regarding the testimony of the victim (p 56, Rollo):

As correctly pointed out in the memorandum for the People, there is not much to be desired as to the sincerity of the offended party
in her testimony before the court. Her answer to every question profounded (sic), under all circumstances, are plain and
straightforward. To the Court she was a picture of supplication hungry and thirsty for the immediate vindication of the affront to
her honor. It is inculcated into the mind of the Court that the accused had wronged her; had traversed illegally her honor.

When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape was committed provided her
testimony is clear and free from contradiction and her sincerity and candor, free from suspicion (People v Alfonso, G.R. No. 72573,
August 31, 1987, 153 SCRA 487; People v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. Soterol G.R. No.
53498, December 16, 1985, 140 SCRA 400). The victim in this case did not only state that she was raped but she testified convincingly
on how the rape was committed. The victim's testimony from the time she knocked on the door of the municipal building up to the time
she was brought to the hospital was corroborated by Pat. Donceras. Interpreting the findings as indicated in the medical certificate,
Dr. Reinerio Zamora (who was presented in view of the unavailability of Dr. Abude) declared that the abrasions in the left and right
knees, linear abrasions below the left breast, multiple pinpoint marks, circumscribed hematoma at the anterior neck, erythematous
area surrounding the vaginal orifice and tender vulva, are conclusive proof of struggle against force and violence exerted on the
victim (pp. 52-53, Rollo). The trial court even inspected the boarding house and was fully satisfied that the narration of the scene
of the incident and the conditions therein is true (p. 54, Rollo):

. . . The staircase leading to the first floor is in such a condition safe enough to carry the weight of both accused and offended
party without the slightest difficulty, even in the manner as narrated. The partitions of every room were of strong materials,
securedly nailed, and would not give way even by hastily scaling the same.

A little insight into human nature is of utmost value in judging rape complaints (People v. Torio, et al., G.R. No. L-48731, December
21, 1983, 126 SCRA 265). Thus, the trial court added (p. 55, Rollo):

. . . And the jump executed by the offended party from that balcony (opening) to the ground which was correctly estimated to be less
than eight (8) meters, will perhaps occasion no injury to a frightened individual being pursued. Common experience will tell us that
in occasion of conflagration especially occuring (sic) in high buildings, many have been saved by jumping from some considerable
heights without being injured. How much more for a frightened barrio girl, like the offended party to whom honor appears to be more
valuable than her life or limbs? Besides, the exposure of her private parts when she sought assistance from authorities, as
corroborated, is enough indication that something not ordinary happened to her unless she is mentally deranged. Sadly, nothing was
adduced to show that she was out of her mind.

In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 117 SCRA 312), We ruled that:

What particularly imprints the badge of truth on her story is her having been rendered entirely naked by appellant and that even in
her nudity, she had to run away from the latter and managed to gain sanctuary in a house owned by spouses hardly known to her. All
these acts she would not have done nor would these facts have occurred unless she was sexually assaulted in the manner she narrated.

The accused questions also the failure of the prosecution to present other witnesses to corroborate the allegations in the complaint
and the non-presentation of the medico-legal officer who actually examined the victim. Suffice it to say that it is up to the
prosecution to determine who should be presented as witnesses on the basis of its own assessment of their necessity (Tugbang v. Court
of Appeals, et al., G.R. No. 56679, June 29, 1989; People v. Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of
the medico-legal officer who actually examined the victim, the trial court stated that it was by agreement of the parties that
another physician testified inasmuch as the medico-legal officer was no longer available. The accused did not bother to contradict
this statement.

Summing up, the arguments raised by the accused as regards the first assignment of error fall flat on its face. Some were not even
substantiated and do not, therefore, merit consideration. We are convinced that the accused is guilty of rape. However, We believe
the subject matter that really calls for discussion, is whether or not the accused's conviction for frustrated rape is proper. The
trial court was of the belief that there is no conclusive evidence of penetration of the genital organ of the victim and thus
convicted the accused of frustrated rape only.

The accused contends that there is no crime of frustrated rape. The Solicitor General shares the same view.

Article 335 of the Revised Penal Code defines and enumerates the elements of the crime of rape:

Art. 335. When and how rape is committed. — Rape is committed by having carnal knowledge of a woman under any of the
following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious and

3. When the woman is under twelve years of age, even though neither of the circumstances mentioned in the two next preceding
paragraphs shall be present.

x x x x x x x x x

Carnal knowledge is defined as the act of a man in having sexual bodily connections with a woman (Black's Law Dictionary. Fifth
Edition, p. 193).

On the other hand, Article 6 of the same Code provides:

Art. 6. Consummated, frustrated, and attempted felonies. — Consummated felonies as well as those which are frustrated and
attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment are present; and it is frustrated when
the offender performs all the acts of execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator.

There is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts
of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.

Correlating these two provisions, there is no debate that the attempted and consummated stages apply to the crime of rape.1âwphi1 Our
concern now is whether or not the frustrated stage applies to the crime of rape.

The requisites of a frustrated felony are: (1) that the offender has performed all the acts of execution which would produce the
felony and (2) that the felony is not produced due to causes independent of the perpetrator's will. In the leading case of United
States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a distinction between attempted and frustrated felonies which is readily
understood even by law students:

. . . A crime cannot be held to be attempted unless the offender, after beginning the commission of the crime by overt acts, is
prevented, against his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to
be an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and compels him to
stop prior to the moment when he has performed all of the acts which should produce the crime as a consequence, which acts it is his
intention to perform. If he has performed all of the acts which should result in the consummation of the crime and voluntarily
desists from proceeding further, it can not be an attempt. The essential element which distinguishes attempted from frustrated felony
is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission
of the crime and the moment when all of the acts have been performed which should result in the consummated crime; while in the
former there is such intervention and the offender does not arrive at the point of performing all of the acts which should produce
the crime. He is stopped short of that point by some cause apart from his voluntary desistance.

Clearly, in the crime of rape, from the moment the offender has carnal knowledge of his victim he actually attains his purpose and,
from that moment also all the essential elements of the offense have been accomplished. Nothing more is left to be done by the
offender, because he has performed the last act necessary to produce the crime. Thus, the felony is consummated. In a long line of
cases (People v. Oscar, 48 Phil. 527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974, 56 SCRA
666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the consummation of
rape, perfect penetration is not essential. Any penetration of the female organ by the male organ is sufficient. Entry of the labia
or lips of the female organ, without rupture of the hymen or laceration of the vagina is sufficient to warrant conviction.
Necessarily, rape is attempted if there is no penetration of the female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et
al., 53 Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of execution was performed. The offender merely
commenced the commission of a felony directly by overt acts. Taking into account the nature, elements and manner of execution of the
crime of rape and jurisprudence on the matter, it is hardly conceivable how the frustrated stage in rape can ever be committed.

Of course, We are aware of our earlier pronouncement in the case of People v. Eriña 50 Phil. 998 [1927] where We found the offender
guilty of frustrated rape there being no conclusive evidence of penetration of the genital organ of the offended party. However, it
appears that this is a "stray" decision inasmuch as it has not been reiterated in Our subsequent decisions. Likewise, We are aware of
Article 335 of the Revised Penal Code, as amended by Republic Act No. 2632 (dated September 12, 1960) and Republic Act No. 4111
(dated March 29, 1965) which provides, in its penultimate paragraph, for the penalty of death when the rape is attempted or
frustrated and a homicide is committed by reason or on the occasion thereof. We are of the opinion that this particular provision on
frustrated rape is a dead provision. The Eriña case, supra, might have prompted the law-making body to include the crime of
frustrated rape in the amendments introduced by said laws.

In concluding that there is no conclusive evidence of penetration of the genital organ of the victim, the trial court relied on the
testimony of Dr. Zamora when he "categorically declared that the findings in the vulva does not give a concrete disclosure of
penetration. As a matter of fact, he tossed back to the offended party the answer as to whether or not there actually was
penetration." (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):

. . . It cannot be insensible to the findings in the medical certificate (Exhibit "A") as interpreted by Dr. Reinerio Zamora and the
equivocal declaration of the latter of uncertainty whether there was penetration or not. It is true, and the Court is not oblivious,
that conviction for rape could proceed from the uncorroborated testimony of the offended party and that a medical certificate is not
necessary (People v. Royeras People v. Orteza, 6 SCRA 109, 113). But the citations the people relied upon cannot be applicable to the
instant case. The testimony of the offended party is at variance with the medical certificate. As such, a very disturbing doubt has
surfaced in the mind of the court. It should be stressed that in cases of rape where there is a positive testimony and a medical
certificate, both should in all respect, compliment each other, for otherwise to rely on the testimony alone in utter disregard of
the manifest variance in the medical certificate, would be productive of mischievous results.

The alleged variance between the testimony of the victim and the medical certificate does not exist. On the contrary, it is stated in
the medical certificate that the vulva was erythematous (which means marked by abnormal redness of the skin due to capillary
congestion, as in inflammation) and tender. It bears emphasis that Dr. Zamora did not rule out penetration of the genital organ of
the victim. He merely testified that there was uncertainty whether or not there was penetration. Anent this testimony, the victim
positively testified that there was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984):

Q Was the penis inserted on your vagina?

A It entered but only a portion of it.

x x x x x x x x x

Q What do you mean when you said comply, or what act do you referred (sic) to, when you said comply?

A I inserted his penis into my vagina.

Q And was it inserted?

A Yes only a little.

The fact is that in a prosecution for rape, the accused may be convicted even on the sole basis of the victim's testimony if credible
(People v. Tabago, G.R. No. 69778, November 8, 1988, 167 SCRA 65; People v. Aragona, G.R. No. L-43752, September 19, 1985, 138 SCRA
569; People v. Taduyo, G.R. Nos. L-37928-29, September 29, 1987, 154 SCRA 349). Moreover, Dr. Zamora's testimony is merely
corroborative and is not an indispensable element in the prosecution of this case (People v. Alfonso, supra).

Although the second assignment of error is meritorious, it will not tilt the scale in favor of the accused because after a thorough
review of the records, We find the evidence sufficient to prove his guilt beyond reasonable doubt of the crime of consummated rape.

Article 335, paragraph 3, of the Revised Penal Code provides that whenever the crime of rape is committed with the use of a deadly
weapon, the penalty shall be reclusion perpetua to death. The trial court appreciated the aggravating circumstances of dwelling and
nighttime. Thus, the proper imposable penalty is death. In view, however, of Article 111, Section 19(1) of the 1987 Constitution and
Our ruling in People v. Millora, et al., G.R. Nos. L-38968-70, February 9, 1989, that the cited Constitutional provision did not
declare the abolition of the death penalty but merely prohibits the imposition of the death penalty, the Court has since February 2,
1987 not imposed the death penalty whenever it was called for under the Revised Penal Code but instead reduced the same to reclusion
perpetua (People v. Solis, et al., G.R. Nos. 78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible penalty
under Article 335, paragraph 3, is imposed regardless of any mitigating or aggravating circumstances (in relation to Article 63,
paragraph 1, Revised Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112 SCRA 615; People v. Manzano, G.R. No.
L38449, November 25, 1982, 118 SCRA 705; People v. Ramirez, G.R. No. 70744, May 31, 1985, 136 SCRA 702).

ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED. The accused Ceilito Orita is hereby found guilty beyond
reasonable doubt of the crime of rape and sentenced to reclusion perpetua as well as to indemnify the victim in the amount of
P30,000.00.

SO ORDERED.
EN BANC

G.R. No. 129433 March 30, 2000

PEOPLE OF THE PHILIPPINES, plaintiff,

BELLOSILLO, J.:

On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated rape 2 and allowed only attempted rape and
consummated rape to remain in our statute books. The instant case lurks at the threshold of another emasculation of the stages of
execution of rape by considering almost every attempt at sexual violation of a woman as consummated rape, that is, if the contrary
view were to be adopted. The danger there is that that concept may send the wrong signal to every roaming lothario, whenever the
opportunity bares itself, to better intrude with climactic gusto, sans any restraint, since after all any attempted fornication would
be considered consummated rape and punished as such. A mere strafing of the citadel of passion would then be considered a deadly fait
accompli, which is absurd.

In Orita we held that rape was consummated from the moment the offender had carnal knowledge of the victim since by it he attained
his objective. All the elements of the offense were already present and nothing more was left for the offender to do, having
performed all the acts necessary to produce the crime and accomplish it. We ruled then that perfect penetration was not essential;
any penetration of the female organ by the male organ, however slight, was sufficient. The Court further held that entry of the labia
or lips of the female organ, even without rupture of the hymen or laceration of the vagina, was sufficient to warrant conviction for
consummated rape. We distinguished consummated rape from attempted rape where there was no penetration of the female organ because
not all acts of execution were performed as the offender merely commenced the commission of a felony directly by overt acts. 3 The
inference that may be derived therefrom is that complete or full penetration of the vagina is not required for rape to be
consummated. Any penetration, in whatever degree, is enough to raise the crime to its consummated stage.

But the Court in Orita clarified the concept of penetration in rape by requiring entry into the labia or lips of the female organ,
even if there be no rupture of the hymen or laceration of the vagina, to warrant a conviction for consummated rape. While the entry
of the penis into the lips of the female organ was considered synonymous with mere touching of the external genitalia, e.g., labia
majora, labia minora, etc.,4 the crucial doctrinal bottom line is that touching must be inextricably viewed in light of, in relation
to, or as an essential part of, the process of penile penetration, and not just mere touching in the ordinary sense. In other words,
the touching must be tacked to the penetration itself. The importance of the requirement of penetration, however slight, cannot be
gainsaid because where entry into the labia or the lips of the female genitalia has not been established, the crime committed amounts
merely to attempted rape.

Verily, this should be the indicium of the Court in determining whether rape has been committed either in its attempted or in its
consummated stage; otherwise, no substantial distinction would exist between the two, despite the fact that penalty-wise, this
distinction, threadbare as it may seem, irrevocably spells the difference between life and death for the accused — a reclusive life
that is not even perpetua but only temporal on one hand, and the ultimate extermination of life on the other. And, arguing on another
level, if the case at bar cannot be deemed attempted but consummated rape, what then would constitute attempted rape? Must our field
of choice be thus limited only to consummated rape and acts of lasciviousness since attempted rape would no longer be possible in
light of the view of those who disagree with this ponencia?

On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape and sentenced by the court a quo to the extreme penalty of
death, 5 hence this case before us on automatic review under Art. 335 of the Revised Penal Code as amended by RA 7659. 6

As may be culled from the evidence on record, on 25 April 1996, at around 4 o'clock in the afternoon, Ma. Corazon P. Pamintuan,
mother of four (4)-year old Crysthel Pamintuan, went down from the second floor of their house to prepare Milo chocolate drinks for
her two (2) children. At the ground floor she met Primo Campuhan who was then busy filling small plastic bags with water to be frozen
into ice in the freezer located at the second floor. Primo was a helper of Conrado Plata Jr., brother of Corazon. As Corazon was busy
preparing the drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting Corazon to rush upstairs. Thereupon, she saw
Primo Campuhan inside her children's room kneeling before Crysthel whose pajamas or "jogging pants" and panty were already removed,
while his short pants were down to his knees.

According to Corazon, Primo was forcing his penis into Crysthel's vagina. Horrified, she cursed the accused, "P - t - ng ina mo, anak
ko iyan!" and boxed him several times. He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried to block
his path. Corazon then ran out and shouted for help thus prompting her brother, a cousin and an uncle who were living within their
compound, to chase the accused. 8 Seconds later, Primo was apprehended by those who answered Corazon's call for help. They he ld the
accused at the back of their compound until they were advised by their neighbors to call the barangay officials instead of detaining
him for his misdeed. Physical examination of the victim yielded negative results. No evident sign of extra-genital physical injury
was noted by the medico-legal officer on Crysthel's body as her hymen was intact and its orifice was only 0.5 cm. in diameter.

Primo Campuhan had only himself for a witness in his defense. He maintained his innocence and assailed the charge as a mere scheme of
Crysthel's mother who allegedly harbored ill will against him for his refusal to run an errand for her. 9 He asserted that in truth
Crysthel was in a playing mood and wanted to ride on his back when she suddenly pulled him down causing both of them to fall down on
the floor. It was in this fallen position that Corazon chanced upon them and became hysterical. Corazon slapped him and accused him
of raping her child. He got mad but restrained himself from hitting back when he realized she was a woman. Corazon called for help
from her brothers to stop him as he ran down from the second floor.

Vicente, Corazon's brother, timely responded to her call for help and accosted Primo. Vicente punched him and threatened to kill him.
Upon hearing the threat, Primo immediately ran towards the house of Conrado Plata but Vicente followed him there. Primo pleaded for a
chance to explain as he reasoned out that the accusation was not true. But Vicente kicked him instead. When Primo saw Vicente holding
a piece of lead pipe, Primo raised his hands and turned his back to avoid the blow. At this moment, the relatives and neighbors of
Vicente prevailed upon him to take Primo to the barangay hall instead, and not to maul or possibly kill him.

Although Primo Campuhan insisted on his innocence, the trial court on 27 May 1997 found him guilty of statutory rape, sentenced him
to the extreme penalty of death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00 for exemplary damages,
and the costs.

The accused Primo Campuhan seriously assails the credibility of Ma. Corazon Pamintuan. He argues that her narration should not be
given any weight or credence since it was punctured with implausible statements and improbabilities so inconsistent with human nature
and experience. He claims that it was truly inconceivable for him to commit the rape considering that Crysthel's younger sister was
also in the room playing while Corazon was just downstairs preparing Milo drinks for her daughters. Their presence alone as possible
eyewitnesses and the fact that the episode happened within the family compound where a call for assistance could easily be heard and
responded to, would have been enough to deter him from committing the crime. Besides, the door of the room was wide open for anybody
to see what could be taking place inside. Primo insists that it was almost inconceivable that Corazon could give such a vivid
description of the alleged sexual contact when from where she stood she could not have possibly seen the alleged touching of the
sexual organs of the accused and his victim. He asserts that the absence of any external signs of physical injuries or of penetration
of Crysthel's private parts more than bolsters his innocence.

In convicting the accused, the trial court relied quite heavily on the testimony of Corazon that she saw Primo with his short pants
down to his knees kneeling before Crysthel whose pajamas and panty were supposedly "already removed" and that Primo was "forcing his
penis into Crysthel's vagina." The gravamen of the offense of statutory rape is carnal knowledge of a woman below twelve (12), as
provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when sexually molested, thus raising
the penalty, from reclusion perpetua to death, to the single indivisible penalty of death under RA 7659, Sec. 11, the offended party
being below seven (7) years old. We have said often enough that in concluding that carnal knowledge took place, full penetration of
the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external
genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. 10 But the act of
touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere
touching alone of the mons pubis or the pudendum.

In People v. De la Peña 11 we clarified that the decisions finding a case for rape even if the attacker's penis merely touched the
external portions of the female genitalia were made in the context of the presence or existence of an erect penis capable of full
penetration. Where the accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which could not fit
into the victim's vagina, the Court nonetheless held that rape was consummated on the basis of the victim's testimony that the
accused repeatedly tried, but in vain, to insert his penis into her vagina and in all likelihood reached the labia of her pudendum as
the victim felt his organ on the lips of her vulva, 12 or that the penis of the accused touched the middle part of her vagina. 13
Thus, touching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush
or a scrape of the penis on the external layer of the victim's vagina, or the mons pubis, as in this case. There must be sufficient
and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external
surface thereof, for an accused to be convicted of consummated rape. 14 As the labias, which are required to be "touched" by the
penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to
attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of
the pudendum constitutes consummated rape.

The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis,
labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes
hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female
organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles
and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath
the labia majora is the labia minora. 15 Jurisprudence dictates that the labia majora must be entered for rape to be consummated, 16
and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or
touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest
penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at
most, it can only be attempted rape, if not acts of lasciviousness.

Judicial depiction of consummated rape has not been confined to the oft-quoted "touching of the female organ," 17 but has also
progressed into being described as "the introduction of the male organ into the labia of the pudendum," 18 or "the bombardment of the
drawbridge." 19 But, to our mild, the case at bar merely constitutes a "shelling of the castle of orgasmic potency," or as earlier
stated, a "strafing of the citadel of passion.

A review of the records clearly discloses that the prosecution utterly failed to discharge its onus of proving that Primo's penis was
able to penetrate Crysthel's vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in the act of sexually
molesting her daughter, we seriously doubt the veracity of her claim that she saw the inter-genital contact between Primo and
Crysthel. When asked what she saw upon entering her children's room Corazon plunged into saying that she saw Primo poking his penis
on the vagina of Crysthel without explaining her relative position to them as to enable her to see clearly and sufficiently, in
automotive lingo, the contact point. It should be recalled that when Corazon chanced upon Primo and Crysthel, the former was
allegedly in a kneeling position, which Corazon described thus:

Q: How was Primo holding your daughter?

A: (The witness is demonstrating in such a way that the chest of the accused is pinning down the victim, while his right hand is
holding his penis and his left hand is spreading the legs of the victim).

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

Corazon insists that Primo did not restrain himself from pursuing his wicked intention despite her timely appearance, thus giving her
the opportunity to fully witness his beastly act.

We are not persuaded. It is inconsistent with man's instinct of self-preservation to remain where he is and persist in satisfying his
lust even when he knows fully well that his dastardly acts have already been discovered or witnessed by no less than the mother of
his victim. For, the normal behavior or reaction of Primo upon learning of Corazon's presence would have been to pull his pants up to
avoid being caught literally with his pants down. The interval, although relatively short, provided more than enough opportunity for
Primo not only to desist from but even to conceal his evil design.

What appears to be the basis of the conviction of the accused was Crysthel's answer to the question of the court —

Q: Did the penis of Primo touch your organ?

A: Yes, sir.

But when asked further whether his penis penetrated her organ, she readily said, "No." Thus —

Q: But did his penis penetrate your organ?

A: No, sir. 20

This testimony alone should dissipate the mist of confusion that enshrouds the question of whether rape in this case was consummated.
It has foreclosed the possibility of Primo's penis penetrating her vagina, however slight. Crysthel made a categorical statement
denying penetration, 27 obviously induced by a question propounded to her who could not have been aware of the finer distinctions
between touching and penetration. Consequently, it is improper and unfair to attach to this reply of a four (4)-year old child, whose
vocabulary is yet as underdeveloped as her sex and whose language is bereft of worldly sophistication, an adult interpretation that
because the penis of the accused touched her organ there was sexual entry. Nor can it be deduced that in trying to penetrate the
victim's organ the penis of the accused touched the middle portion of her vagina and entered the labia of her pudendum as the
prosecution failed to establish sufficiently that Primo made efforts to penetrate Crysthel. 22 Corazon did not say, nay, not even
hint that Primo's penis was erect or that he responded with an erection. 23 On the contrary, Corazon even narrated that Primo had to
hold his penis with his right hand, thus showing that he had yet to attain an erection to be able to penetrate his victim.
Antithetically, the possibility of Primo's penis having breached Crysthel's vagina is belied by the child's own assertion that she
resisted Primo's advances by putting her legs close together; 24 consequently, she did not feel any intense pain but just felt "not
happy" about what Primo did to her. 25 Thus, she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where penetration
was not fully established, the Court had anchored its conclusion that rape nevertheless was consummated on the victim's testimony
that she felt pain, or the medico-legal finding of discoloration in the inner lips of the vagina, or the labia minora was already
gaping with redness, or the hymenal tags were no longer visible. 26 None was shown in this case. Although a child's testimony must be
received with due consideration on account of her tender age, the Court endeavors at the same time to harness only what in her story
appears to be true, acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that even on the basis
of the testimony of Crysthel alone the accused cannot be held liable for consummated rape; worse, be sentenced to death.1âwphi1

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

In cases of rape where there is a positive testimony and a medical certificate, both should in all respects complement each other;
otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate, would
be productive of unwarranted or even mischievous results. It is necessary to carefully ascertain whether the penis of the accused in
reality entered the labial threshold of the female organ to accurately conclude that rape was consummated. Failing in this, the thin
line that separates attempted rape from consummated rape will significantly disappear.

Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is attempted when the offender commences the commission of
rape directly by overt acts, and does not perform all the acts of execution which should produce the crime of rape by reason of some
cause or accident other than his own spontaneous desistance. All the elements of attempted rape — and only of attempted rape — are
present in the instant case, hence, the accused should be punished only for it.

The penalty for attempted rape is two (2) degrees lower than the imposable penalty of death for the offense charged, which is
statutory rape of a minor below seven (7) years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12) years
and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, and in the absence of any mitigating or aggravating
circumstance, the maximum of the penalty to be imposed upon the accused shall be taken from the medium period of reclusion temporal,
the range of which is fourteen (14) years, eight (8) months and (1) day to seventeen (17) years and four (4) months, while the
minimum shall be taken from the penalty next lower in degree, which is prision mayor, the range of which is from six (6) years and
one (1) day to twelve (12) years, in any of its periods.

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

SO ORDERED.1âwphi1.nêt

Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De
Leon, Jr., JJ., concur.
Pnganiban, J., in the result.