Republic of the Philippines As to the first contention, we are of the opinion that the crime committed would

SUPREME COURT have been murder if the girl had been killed. It is qualified by the circumstance
Manila of alevosia, the accused making a sudden attack upon his victim from the rear,
or partly from the rear, and dealing her a terrible blow in the back and side with
EN BANC his bolo. Such an attack necessitates the finding that it was made
treacherously; and that being so the crime would have been qualified as
murder if death had resulted.
G.R. No. L-12155            February 2, 1917

As to the second contention, we are of the opinion that the crime was
THE UNITED STATES, plaintiff-appellee,
frustrated and not attempted murder. Article 3 of the Penal Code defines a
vs.
frustrated felony as follows:
PROTASIO EDUAVE, defendant-appellant.

A felony is frustrated when the offender performs all the acts of

Manuel Roxas for appellant.
execution which should produce the felony as a consequence, but
Attorney-General Avanceña for appellee.
which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.

An attempted felony is defined thus:

MORELAND, J.:
There is an attempt when the offender commences the commission of
We believe that the accused is guilty of frustrated murder. the felony directly by overt acts, and does not perform all the acts of
execution which constitute the felony by reason of some cause or
We are satisfied that there was an intent to kill in this case. A deadly weapon accident other than his own voluntarily desistance.
was used. The blow was directed toward a vital part of the body. The
aggressor stated his purpose to kill, thought he had killed, and threw the body The crime cannot be attempted murder. This is clear from the fact that the
into the bushes. When he gave himself up he declared that he had killed the defendant performed all of the acts which should have resulted in the
complainant. consummated crime and voluntarily desisted from further acts. A crime cannot
be held to be attempted unless the offender, after beginning the commission of
There was alevosia to qualify the crime as murder if death had resulted. The the crime by overt acts, is prevented, against his will, by some outside cause
accused rushed upon the girl suddenly and struck her from behind, in part at from performing all of the acts which should produce the crime. In other words,
least, with a sharp bolo, producing a frightful gash in the lumbar region and to be an attempted crime the purpose of the offender must be thwarted by a
slightly to the side eight and one-half inches long and two inches deep, foreign force or agency which intervenes and compels him to stop prior to the
severing all of the muscles and tissues of that part. 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
The motive of the crime was that the accused was incensed at the girl for the all of the acts which should result in the consummation of the crime
reason that she had theretofore charged him criminally before the local officials and voluntarily  desists from proceeding further, it can not be an attempt. The
with having raped her and with being the cause of her pregnancy. He was her essential element which distinguishes attempted from frustrated felony is that,
mother's querido and was living with her as such at the time the crime here in the latter, there is no intervention of a foreign or extraneous cause or agency
charged was committed. 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
That the accused is guilty of some crime is not denied. The only question is the crime; while in the former there is such intervention and the offender does not
precise crime of which he should be convicted. It is contended, in the first arrive at the point of performing all of the acts which should produce the crime.
place, that, if death has resulted, the crime would not have been murder but He is stopped short of that point by some cause apart from his voluntary
homicide, and in the second place, that it is attempted and not frustrated desistance.
homicide.
To put it in another way, in case of an attempt the offender never passes the Republic of the Philippines
subjective phase of the offense. He is interrupted and compelled to desist by SUPREME COURT
the intervention of outside causes before the subjective phase is passed. Manila

On the other hand, in case of frustrated crimes the subjective phase is FIRST DIVISION
completely passed. Subjectively the crime is complete. Nothing interrupted the
offender while he was passing through the subjective phase. The crime, G.R. No. 88724               April 3, 1990
however, is not consummated by reason of the intervention of causes
independent of the will of the offender. He did all that was necessary to commit THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
the crime. If the crime did not result as a consequence it was due to something vs.
beyond his control. CEILITO ORITA alias "Lito," defendant-appellant.

The subjective phase is that portion of the acts constituting the crime included The Office of the Solicitor General for plaintiff-appellee.
between the act which begins  the commission of the crime and the last act C. Manalo for defendant-appellant.
performed by the offender which, with the prior acts, should result in the
consummated crime. From that time forward the phase is objective. It may also
be said to be that period occupied by the acts of the offender over which he
has control — that period between the point where he begins and the points
where he voluntarily desists. If between these two points the offender is
stopped by reason of any cause outside of his own voluntary desistance, the MEDIALDEA, J.:
subjective phase has not been passed and it is an attempt. If he is not so
stopped but continues until he performs the last act, it is frustrated. 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,
That the case before us is frustrated is clear. Borongan, Eastern Samar. The information filed in the said case reads as
follows (p. 47, Rollo):
The penalty should have been thirteen years of cadena temporal there being
neither aggravating nor mitigating circumstance. As so modified, the judgment The undersigned Second Assistant Provincial Fiscal upon prior
is affirmed with costs. So ordered. complaint under oath by the offended party, accuses CEILITO
ORITA alias LITO of the crime of Rape committed as follows:
Torres and Araullo, JJ., concur.
Carson and Trent, JJ., concur in the result. 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 In the early morning of March 20, 1983, complainant arrived at her
charged. After the witnesses for the People testified and the exhibits were boarding house. Her classmates had just brought her home from a
formally offered and admitted, the prosecution rested its case. Thereafter, the party (p. 44, tsn, May 23, 1984). Shortly after her classmates had left,
defense opted not to present any exculpatory evidence and instead filed a she knocked at the door of her boarding house (p. 5, ibid). All of a
Motion to Dismiss. On August 5, 1985, the trial court rendered its decision, the sudden, somebody held her and poked a knife to her neck. She then
dispositive portion of which reads (pp. 59-60, Rollo): recognized appellant who was a frequent visitor of another boarder
(pp. 8-9, ibid).
WHEREFORE. the Court being morally certain of the guilt of accused
CEILITO ORITA @ LITO, of the crime of Frustrated Rape (Art. 335, She pleaded with him to release her, but he ordered her to go upstairs
RPC), beyond reasonable doubt, with the aggravating circumstances with him. Since the door which led to the first floor was locked from the
of dwelling and nightime (sic) with no mitigating circumstance to offset inside, appellant forced complainant to use the back door leading to
the same, and considering the provisions of the Indeterminate the second floor (p. 77, ibid). With his left arm wrapped around her
Sentence Law, imposes on accused an imprisonment of TEN (10) neck and his right hand poking a "balisong" to her neck, appellant
YEARS and ONE (1) DAY, PRISION MAYOR, as minimum to dragged complainant up the stairs (p. 14, ibid). When they reached the
TWELVE (12) YEARS PRISION MAYOR, maximum; to indemnify second floor, he commanded her to look for a room. With the Batangas
CRISTINA S. ABAYAN, the amount of Four Thousand (P4,000.00) knife still poked to her neck, they entered complainant's room.
Pesos, without subsidiary imprisonment in case of insolvency, and to
pay costs. Upon entering the room, appellant pushed complainant who hit her
head on the wall. With one hand holding the knife, appellant
SO ORDERED. undressed himself. He then ordered complainant to take off her
clothes. Scared, she took off her T-shirt. Then he pulled off her bra,
Not satisfied with the decision, the accused appealed to the Court of Appeals. pants and panty (p. 20, ibid).
On December 29, 1988, the Court of Appeals rendered its decision, the
dispositive portion of which reads (p. 102, Rollo): 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
WHEREFORE, the trial court's judgment is hereby MODIFIED, and the order as he continued to poke the knife to her. At said position,
appellant found guilty of the crime of rape, and consequently, however, appellant could not fully penetrate her. Only a portion of his
sentenced to suffer imprisonment of reclusion perpetua and to penis entered her as she kept on moving (p. 23, ibid).
indemnify the victim in the amount of P30,000.00.
Appellant then lay down on his back and commanded her to mount
SO ORDERED. 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).
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 She dashed out to the next room and locked herself in. Appellant
conjunction with Section 17, paragraph 3, subparagraph 1 of the Judiciary Act pursued her and climbed the partition. When she saw him inside the
of 1948. room, she ran to another room. Appellant again chased her. She fled
to another room and jumped out through a window (p. 27, ibid).
The antecedent facts as summarized in the People's brief are as follows (pp.
71-75, Rollo): 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
Complainant Cristina S. Abayan was a 19-year old freshman student
knocked on the back door. When the policemen who were inside the
at the St. Joseph's College at Borongan, Eastern Samar. Appellant
building opened the door, they found complainant naked sitting on the
was a Philippine Constabulary (PC) soldier.
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 to fabrication and therefore casted doubt to its candor, truth and validity." (p.
boarding house. They heard a sound at the second floor and saw 33, Rollo)
somebody running away. Due to darkness, they failed to apprehend
appellant. 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'
Meanwhile, the policemen brought complainant to the Eastern Samar straightforward attestations. Far from being badges of fabrication, the
Provincial Hospital where she was physically examined. inconsistencies in their testimonies may in fact be justifiably considered as
manifestations of truthfulness on material points. These little deviations also
Dr. Ma. Luisa Abude, the resident physician who examined confirm that the witnesses had not been rehearsed. The most candid
complainant, issued a Medical Certificate (Exhibit "A") which states: 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
Physical Examination — Patient is fairly built, came in with
the prosecution witnesses, discrepancies on minor details must be viewed as
loose clothing with no under-clothes; appears in state of
adding credence and veracity to such spontaneous testimonies (Aportadera et
shock, per unambulatory.
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
PE Findings — Pertinent Findings only. 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
Neck- — Circumscribed hematoma at Ant. neck. 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
Breast — Well developed, conical in shape with prominent knowledge of her. According to the accused, this is strange because "this is
nipples; linear abrasions below (L) breast. 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
Back — Multiple pinpoint marks. 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
Extremities — Abrasions at (R) and (L) knees.
which the accused conveniently deleted.

Vulva — No visible abrasions or marks at the perineal area or

We find no cogent reason to depart from the well-settled rule that the findings
over the vulva, errythematous (sic) areas noted surrounding
of fact of the trial court on the credibility of witnesses should be accorded the
vaginal orifice, tender, hymen intact; no laceration fresh and
highest respect because it has the advantage of observing the demeanor of
old noted; examining finger can barely enter and with difficulty;
witnesses and can discern if a witness is telling the truth (People v. Samson,
vaginal canal tight; no discharges noted.
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 aforementioned, the trial court convicted the accused of frustrated rape.
As correctly pointed out in the memorandum for the People, there is
In this appeal, the accused assigns the following errors: 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
1) The trial court erred in disregarding the substantial inconsistencies in the (sic), under all circumstances, are plain and straightforward. To the
testimonies of the witnesses; and Court she was a picture of supplication hungry and thirsty for the
immediate vindication of the affront to her honor. It is inculcated into
2) The trial court erred in declaring that the crime of frustrated rape was the mind of the Court that the accused had wronged her; had traversed
committed by the accused. illegally her honor.

The accused assails the testimonies of the victim and Pat. Donceras because When a woman testifies that she has been raped, she says in effect all that is
they "show remarkable and vital inconsistencies and its incredibility amounting 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 would not have done nor would these facts have occurred unless she
v. Alcid, G.R. Nos. 66387-88, February 28, 1985, 135 SCRA 280; People v. was sexually assaulted in the manner she narrated.
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 The accused questions also the failure of the prosecution to present other
how the rape was committed. The victim's testimony from the time she witnesses to corroborate the allegations in the complaint and the non-
knocked on the door of the municipal building up to the time she was brought presentation of the medico-legal officer who actually examined the victim.
to the hospital was corroborated by Pat. Donceras. Interpreting the findings as Suffice it to say that it is up to the prosecution to determine who should be
indicated in the medical certificate, Dr. Reinerio Zamora (who was presented in presented as witnesses on the basis of its own assessment of their necessity
view of the unavailability of Dr. Abude) declared that the abrasions in the left (Tugbang v. Court of Appeals, et al., G.R. No. 56679, June 29, 1989; People v.
and right knees, linear abrasions below the left breast, multiple pinpoint marks, Somera, G.R. No. 65589, May 31, 1989). As for the non-presentation of the
circumscribed hematoma at the anterior neck, erythematous area surrounding medico-legal officer who actually examined the victim, the trial court stated that
the vaginal orifice and tender vulva, are conclusive proof of struggle against it was by agreement of the parties that another physician testified inasmuch as
force and violence exerted on the victim (pp. 52-53, Rollo). The trial court even the medico-legal officer was no longer available. The accused did not bother to
inspected the boarding house and was fully satisfied that the narration of the contradict this statement.
scene of the incident and the conditions therein is true (p. 54, Rollo):
Summing up, the arguments raised by the accused as regards the first
. . . The staircase leading to the first floor is in such a condition safe assignment of error fall flat on its face. Some were not even substantiated and
enough to carry the weight of both accused and offended party without do not, therefore, merit consideration. We are convinced that the accused is
the slightest difficulty, even in the manner as narrated. The partitions of guilty of rape. However, We believe the subject matter that really calls for
every room were of strong materials, securedly nailed, and would not discussion, is whether or not the accused's conviction for  frustrated rape is
give way even by hastily scaling the same. 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
A little insight into human nature is of utmost value in judging rape complaints frustrated rape only.
(People v. Torio, et al., G.R. No. L-48731, December 21, 1983, 126 SCRA
265). Thus, the trial court added (p. 55, Rollo): The accused contends that there is no crime of frustrated rape. The Solicitor
General shares the same view.
. . . And the jump executed by the offended party from that balcony
(opening) to the ground which was correctly estimated to be less than Article 335 of the Revised Penal Code defines and enumerates the elements
eight (8) meters, will perhaps occasion no injury to a frightened of the crime of rape:
individual being pursued. Common experience will tell us that in
occasion of conflagration especially occuring (sic) in high buildings, Art. 335. When and how rape is committed. — Rape is committed by
many have been saved by jumping from some considerable heights having carnal knowledge of a woman under any of the following
without being injured. How much more for a frightened barrio girl, like circumstances:
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 1. By using force or intimidation;
indication that something not ordinary happened to her unless she is
mentally deranged. Sadly, nothing was adduced to show that she was 2. When the woman is deprived of reason or otherwise unconscious
out of her mind. and

In a similar case (People v. Sambili G.R. No. L-44408, September 30, 1982, 3. When the woman is under twelve years of age, even though neither
117 SCRA 312), We ruled that: of the circumstances mentioned in the two next preceding paragraphs
shall be present.
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, x x x           x x x          x x x
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
Carnal knowledge is defined as the act of a man in having sexual bodily consummated crime; while in the former there is such intervention and
connections with a woman (Black's Law Dictionary. Fifth Edition, p. 193). 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
On the other hand, Article 6 of the same Code provides: some cause apart from his voluntary desistance.

Art. 6. Consummated, frustrated, and attempted felonies. — Clearly, in the crime of rape, from the moment the offender has carnal
Consummated felonies as well as those which are frustrated and knowledge of his victim he actually attains his purpose and, from that moment
attempted, are punishable. 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
A felony is consummated when all the elements necessary for its
consummated. In a long line of cases (People v. Oscar, 48 Phil. 527; People v.
execution and accomplishment are present; and it is frustrated when
Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-31886, April 29, 1974,
the offender performs all the acts of execution which would produce
56 SCRA 666; People v. Amores, G.R. No. L-32996, August 21, 1974, 58
the felony as a consequence but which, nevertheless, do not produce
SCRA 505), We have set the uniform rule that for the consummation of rape,
it by reason of causes independent of the will of the perpetrator.
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
There is an attempt when the offender commences the commission of rupture of the hymen or laceration of the vagina is sufficient to warrant
a felony directly by overt acts, and does not perform all the acts of conviction. Necessarily, rape is attempted if there is no penetration of the
execution which should produce the felony by reason of some cause female organ (People v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53
or accident other than his own spontaneous desistance. Phil. 694; United States v. Garcia: 9 Phil. 434) because not all acts of
execution was performed. The offender merely commenced the commission of
Correlating these two provisions, there is no debate that the attempted and a felony directly by overt acts. Taking into account the nature, elements and
consummated stages apply to the crime of rape.1âwphi1 Our concern now is manner of execution of the crime of rape and jurisprudence on the matter, it is
whether or not the frustrated stage applies to the crime of rape. hardly conceivable how the frustrated stage in rape can ever be committed.

The requisites of a frustrated felony are: (1) that the offender has performed all Of course, We are aware of our earlier pronouncement in the case of People v.
the acts of execution which would produce the felony and (2) that the felony is Eriña 50 Phil. 998 [1927] where We found the offender guilty of frustrated rape
not produced due to causes independent of the perpetrator's will. In the leading there being no conclusive evidence of penetration of the genital organ of the
case of United States v. Eduave, 36 Phil. 209, 212, Justice Moreland set a offended party. However, it appears that this is a "stray" decision inasmuch as
distinction between attempted and frustrated felonies which is readily it has not been reiterated in Our subsequent decisions. Likewise, We are
understood even by law students: 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
. . . A crime cannot be held to be attempted unless the offender, after March 29, 1965) which provides, in its penultimate paragraph, for the penalty
beginning the commission of the crime by overt acts, is prevented, of death when the rape is attempted or frustrated and a homicide is committed
against his will, by some outside cause from performing all of the acts by reason or on the occasion thereof. We are of the opinion that this particular
which should produce the crime. In other words, to be an attempted provision on frustrated rape is a dead provision. The Eriña case, supra, might
crime the purpose of the offender must be thwarted by a foreign force have prompted the law-making body to include the crime of frustrated rape in
or agency which intervenes and compels him to stop prior to the the amendments introduced by said laws.
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 In concluding that there is no conclusive evidence of penetration of the genital
he has performed all of the acts which should result in the organ of the victim, the trial court relied on the testimony of Dr. Zamora when
consummation of the crime and voluntarily desists from proceeding he "categorically declared that the findings in the vulva does not give a
further, it can not be an attempt. The essential element which concrete disclosure of penetration. As a matter of fact, he tossed back to the
distinguishes attempted from frustrated felony is that, in the latter, offended party the answer as to whether or not there actually was penetration."
there is no intervention of a foreign or extraneous cause or agency (p. 53, Rollo) Furthermore, the trial court stated (p. 57, Rollo):
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
 . . . It cannot be insensible to the findings in the medical certificate testimony is merely corroborative and is not an indispensable element in the
(Exhibit "A") as interpreted by Dr. Reinerio Zamora and the equivocal prosecution of this case (People v. Alfonso, supra).
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 Although the second assignment of error is meritorious, it will not tilt the scale
could proceed from the uncorroborated testimony of the offended party in favor of the accused because after a thorough review of the records, We find
and that a medical certificate is not necessary (People v. Royeras the evidence sufficient to prove his guilt beyond reasonable doubt of the crime
People v. Orteza, 6 SCRA 109, 113). But the citations the people of consummated rape.
relied upon cannot be applicable to the instant case. The testimony of
the offended party is at variance with the medical certificate. As such, Article 335, paragraph 3, of the Revised Penal Code provides that whenever
a very disturbing doubt has surfaced in the mind of the court. It should the crime of rape is committed with the use of a deadly weapon, the penalty
be stressed that in cases of rape where there is a positive testimony shall be reclusion perpetua to death. The trial court appreciated the
and a medical certificate, both should in all respect, compliment each aggravating circumstances of dwelling and nighttime. Thus, the proper
other, for otherwise to rely on the testimony alone in utter disregard of imposable penalty is death. In view, however, of Article 111, Section 19(1) of
the manifest variance in the medical certificate, would be productive of the 1987 Constitution and Our ruling in People v. Millora, et al., G.R. Nos. L-
mischievous results. 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 alleged variance between the testimony of the victim and the medical the death penalty, the Court has since February 2, 1987 not imposed the death
certificate does not exist. On the contrary, it is stated in the medical certificate penalty whenever it was called for under the Revised Penal Code but instead
that the vulva was erythematous (which means marked by abnormal redness reduced the same to reclusion perpetua (People v. Solis, et al., G.R. Nos.
of the skin due to capillary congestion, as in inflammation) and tender. It bears 78732-33, February 14, 1990). Reclusion perpetua, being a single indivisible
emphasis that Dr. Zamora did not rule out penetration of the genital organ of penalty under Article 335, paragraph 3, is imposed regardless of any mitigating
the victim. He merely testified that there was uncertainty whether or not there or aggravating circumstances (in relation to Article 63, paragraph 1, Revised
was penetration. Anent this testimony, the victim positively testified that there Penal Code; see People v. Arizala, G.R. No. 59713, March 15, 1982, 112
was penetration, even if only partially (pp. 302, 304, t.s.n., May 23, 1984): 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
Q Was the penis inserted on your vagina? 702).

A It entered but only a portion of it. ACCORDINGLY, the decision of the Regional Trial Court is hereby MODIFIED.
The accused Ceilito Orita is hereby found guilty beyond reasonable doubt of
x x x           x x x          x x x the crime of rape and sentenced to reclusion perpetua as well as to indemnify
the victim in the amount of P30,000.00.
Q What do you mean when you said comply, or what act do you
referred (sic) to, when you said comply? SO ORDERED.

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
 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
G.R. No. 129433             March 30, 2000 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
PEOPLE OF THE PHILIPPINES, plaintiff, merely to attempted rape.
vs.
PRIMO CAMPUHAN Y BELLO accused. 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,
BELLOSILLO, J.: 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
On 3 April 1990 this Court in People v. Orita 1 finally did away with frustrated
even  perpetua but only temporal on one hand, and the ultimate extermination
rape 2 and allowed only attempted rape and consummated rape to remain in
of life on the other. And, arguing on another level, if the case at bar cannot be
our statute books. The instant case lurks at the threshold of another
deemed attempted but consummated rape, what then would constitute
emasculation of the stages of execution of rape by considering almost every
attempted rape? Must our field of choice be thus limited only to consummated
attempt at sexual violation of a woman as consummated rape, that is, if the
rape and acts of lasciviousness since attempted rape would no longer be
contrary view were to be adopted. The danger there is that that concept may
possible in light of the view of those who disagree with this  ponencia?
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 On 27 May 1997 Primo Campuhan y Bello was found guilty of statutory rape
punished as such. A mere strafing of the citadel of passion would then be and sentenced by the court a quo to the extreme penalty of death, 5 hence this
considered a deadly fait accompli, which is absurd. case before us on automatic review under Art. 335 of the Revised Penal Code
as amended by RA 7659. 6
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 As may be culled from the evidence on record, on 25 April 1996, at around 4
elements of the offense were already present and nothing more was left for the o'clock in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old
offender to do, having performed all the acts necessary to produce the crime Crysthel Pamintuan, went down from the second floor of their house to prepare
and accomplish it. We ruled then that perfect penetration was not essential; Milo chocolate drinks for her two (2) children. At the ground floor she met
any penetration of the female organ by the male organ, however slight, was Primo Campuhan who was then busy filling small plastic bags with water to be
sufficient. The Court further held that entry of the labia or lips of the female frozen into ice in the freezer located at the second floor. Primo was a helper of
organ, even without rupture of the hymen or laceration of the vagina, was Conrado Plata Jr., brother of Corazon. As Corazon was busy preparing the
sufficient to warrant conviction for consummated rape. We distinguished drinks, she heard one of her daughters cry, "Ayo'ko, ayo'ko!" 7 prompting
consummated rape from attempted rape where there was no penetration of the Corazon to rush upstairs. Thereupon, she saw Primo Campuhan inside her
female organ because not all acts of execution were performed as the offender children's room kneeling before Crysthel whose pajamas or "jogging pants"
merely commenced the commission of a felony directly by overt acts. 3 The and panty were already removed, while his short pants were down to his
inference that may be derived therefrom is that complete or full penetration of knees.
According to Corazon, Primo was forcing his penis into Crysthel's vagina. possible eyewitnesses and the fact that the episode happened within the family
Horrified, she cursed the accused, "P - t - ng ina mo, anak ko iyan!" and boxed compound where a call for assistance could easily be heard and responded to,
him several times. He evaded her blows and pulled up his pants. He pushed would have been enough to deter him from committing the crime. Besides, the
Corazon aside when she tried to block his path. Corazon then ran out and door of the room was wide open for anybody to see what could be taking place
shouted for help thus prompting her brother, a cousin and an uncle who were inside. Primo insists that it was almost inconceivable that Corazon could give
living within their compound, to chase the accused. 8 Seconds later, Primo was such a vivid description of the alleged sexual contact when from where she
apprehended by those who answered Corazon's call for help. They held the stood she could not have possibly seen the alleged touching of the sexual
accused at the back of their compound until they were advised by their organs of the accused and his victim. He asserts that the absence of any
neighbors to call the barangay officials instead of detaining him for his external signs of physical injuries or of penetration of Crysthel's private parts
misdeed. Physical examination of the victim yielded negative results. No more than bolsters his innocence.
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 In convicting the accused, the trial court relied quite heavily on the testimony of
cm. in diameter. Corazon that she saw Primo with his short pants down to his knees kneeling
before Crysthel whose pajamas and panty were supposedly "already removed"
Primo Campuhan had only himself for a witness in his defense. He maintained and that Primo was "forcing his penis into Crysthel's vagina." The gravamen of
his innocence and assailed the charge as a mere scheme of Crysthel's mother the offense of statutory rape is carnal knowledge of a woman below twelve
who allegedly harbored ill will against him for his refusal to run an errand for (12), as provided in Art. 335, par. (3), of the Revised Penal Code. Crysthel was
her. 9 He asserted that in truth Crysthel was in a playing mood and wanted to only four (4) years old when sexually molested, thus raising the penalty,
ride on his back when she suddenly pulled him down causing both of them to from reclusion perpetua to death, to the single indivisible penalty of death
fall down on the floor. It was in this fallen position that Corazon chanced upon under RA 7659, Sec. 11, the offended party being below seven (7) years old.
them and became hysterical. Corazon slapped him and accused him of raping We have said often enough that in concluding that carnal knowledge took
her child. He got mad but restrained himself from hitting back when he realized place, full penetration of the vaginal orifice is not an essential ingredient, nor is
she was a woman. Corazon called for help from her brothers to stop him as he the rupture of the hymen necessary; the mere touching of the external genitalia
ran down from the second floor. 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
Vicente, Corazon's brother, timely responded to her call for help and accosted inherently part of the entry of the penis into the labias of the female organ and
Primo. Vicente punched him and threatened to kill him. Upon hearing the not mere touching alone of the mons pubis or the pudendum.
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 In People v. De la Peña 11 we clarified that the decisions finding a case for rape
that the accusation was not true. But Vicente kicked him instead. When Primo even if the attacker's penis merely touched the external portions of the female
saw Vicente holding a piece of lead pipe, Primo raised his hands and turned genitalia were made in the context of the presence or existence of an erect
his back to avoid the blow. At this moment, the relatives and neighbors of penis capable of full penetration. Where the accused failed to achieve an
Vicente prevailed upon him to take Primo to the barangay hall instead, and not erection, had a limp or flaccid penis, or an oversized penis which could not fit
to maul or possibly kill him. into the victim's vagina, the Court nonetheless held that rape was
consummated on the basis of the victim's testimony that the accused
Although Primo Campuhan insisted on his innocence, the trial court on 27 May repeatedly tried, but in vain, to insert his penis into her vagina and in all
1997 found him guilty of statutory rape, sentenced him to the extreme penalty likelihood reached the labia of her pudendum as the victim felt his organ on the
of death, and ordered him to pay his victim P50,000.00 for moral damages, lips of her vulva, 12 or that the penis of the accused touched the middle part of
P25,000.00 for exemplary damages, and the costs. 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
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon
pubis, as in this case. There must be sufficient and convincing proof that the
Pamintuan. He argues that her narration should not be given any weight or
penis indeed touched the labias or slid into the female organ, and not merely
credence since it was punctured with implausible statements and
stroked the external surface thereof, for an accused to be convicted of
improbabilities so inconsistent with human nature and experience. He claims
consummated rape. 14 As the labias, which are required to be "touched" by the
that it was truly inconceivable for him to commit the rape considering that
penis, are by their natural situs or location beneath the mons pubis or the
Crysthel's younger sister was also in the room playing while Corazon was just
vaginal surface, to touch them with the penis is to attain some degree of
downstairs preparing Milo drinks for her daughters. Their presence alone as
penetration beneath the surface, hence, the conclusion that touching the labia It can reasonably be drawn from the foregoing narration that Primo's kneeling
majora or the labia minora of the pudendum constitutes consummated rape. position rendered an unbridled observation impossible. Not even a vantage
point from the side of the accused and the victim would have provided Corazon
The pudendum or vulva is the collective term for the female genital organs that an unobstructed view of Primo's penis supposedly reaching Crysthel's external
are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, genitalia, i.e., labia majora, labia minora, hymen, clitoris, etc., since the legs
the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded and arms of Primo would have hidden his movements from Corazon's sight,
eminence that becomes hairy after puberty, and is instantly visible within the not to discount the fact that Primo's right hand was allegedly holding his penis
surface. The next layer is the labia majora or the outer lips of the female organ thereby blocking it from Corazon's view. It is the burden of the prosecution to
composed of the outer convex surface and the inner surface. The skin of the establish how Corazon could have seen the sexual contact and to shove her
outer convex surface is covered with hair follicles and is pigmented, while the account into the permissive sphere of credibility. It is not enough that she
inner surface is a thin skin which does not have any hair but has many claims that she saw what was done to her daughter. It is required that her
sebaceous glands. Directly beneath the labia majora is the labia claim be properly demonstrated to inspire belief. The prosecution failed in this
minora. 15 Jurisprudence dictates that the labia majora must be entered for rape respect, thus we cannot conclude without any taint of serious doubt that inter-
to be consummated, 16 and not merely for the penis to stroke the surface of the genital contact was at all achieved. To hold otherwise would be to resolve the
female organ. Thus, a grazing of the surface of the female organ or touching doubt in favor of the prosecution but to run roughshod over the constitutional
the mons pubis of the pudendum is not sufficient to constitute consummated right of the accused to be presumed innocent.
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 Corazon insists that Primo did not restrain himself from pursuing his wicked
consummated rape; at most, it can only be attempted rape, if not acts of intention despite her timely appearance, thus giving her the opportunity to fully
lasciviousness. witness his beastly act.

Judicial depiction of consummated rape has not been confined to the oft- We are not persuaded. It is inconsistent with man's instinct of self-preservation
quoted "touching of the female organ," 17 but has also progressed into being to remain where he is and persist in satisfying his lust even when he knows
described as "the introduction of the male organ into the labia of the fully well that his dastardly acts have already been discovered or witnessed by
pudendum," 18 or "the bombardment of the drawbridge." 19 But, to our mild, the no less than the mother of his victim. For, the normal behavior or reaction of
case at bar merely constitutes a "shelling of the castle of orgasmic potency," or Primo upon learning of Corazon's presence would have been to pull his pants
as earlier stated, a "strafing of the citadel of passion. 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
A review of the records clearly discloses that the prosecution utterly failed to desist from but even to conceal his evil design.
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 What appears to be the basis of the conviction of the accused was Crysthel's
witnessed Primo in the act of sexually molesting her daughter, we seriously answer to the question of the court —
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 Q: Did the penis of Primo touch your organ?
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 A: Yes, sir.
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: But when asked further whether his penis penetrated her organ, she readily
said, "No." Thus —
Q: How was Primo holding your daughter?
Q: But did his penis penetrate your organ?
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 A: No, sir. 20
penis and his left hand is spreading the legs of the victim).
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 conclude that rape was consummated. Failing in this, the thin line that
made a categorical statement denying penetration, 27 obviously induced by a separates attempted rape from consummated rape will significantly disappear.
question propounded to her who could not have been aware of the finer
distinctions between touching and penetration. Consequently, it is improper Under Art. 6, in relation to Art. 335, of the Revised Penal Code, rape is
and unfair to attach to this reply of a four (4)-year old child, whose vocabulary attempted when the offender commences the commission of rape directly by
is yet as underdeveloped as her sex and whose language is bereft of worldly overt acts, and does not perform all the acts of execution which should
sophistication, an adult interpretation that because the penis of the accused produce the crime of rape by reason of some cause or accident other than his
touched her organ there was sexual entry. Nor can it be deduced that in trying own spontaneous desistance. All the elements of attempted rape — and only
to penetrate the victim's organ the penis of the accused touched the middle of attempted rape — are present in the instant case, hence, the accused
portion of her vagina and entered the labia of her pudendum as the should be punished only for it.
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 The penalty for attempted rape is two (2) degrees lower than the imposable
erect or that he responded with an erection. 23 On the contrary, Corazon even penalty of death for the offense charged, which is statutory rape of a minor
narrated that Primo had to hold his penis with his right hand, thus showing that below seven (7) years. Two (2) degrees lower is reclusion temporal, the range
he had yet to attain an erection to be able to penetrate his victim. 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
Antithetically, the possibility of Primo's penis having breached Crysthel's aggravating circumstance, the maximum of the penalty to be imposed upon the
vagina is belied by the child's own assertion that she resisted Primo's accused shall be taken from the medium period of reclusion temporal, the
advances by putting her legs close together; 24 consequently, she did not feel range of which is fourteen (14) years, eight (8) months and (1) day to
any intense pain but just felt "not happy" about what Primo did to her. 25 Thus, seventeen (17) years and four (4) months, while the minimum shall be taken
she only shouted "Ayo'ko, ayo'ko!" not "Aray ko, aray ko!" In cases where from the penalty next lower in degree, which is  prision mayor, the range of
penetration was not fully established, the Court had anchored its conclusion which is from six (6) years and one (1) day to twelve (12) years, in any of its
that rape nevertheless was consummated on the victim's testimony that she periods.
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 WHEREFORE, the Decision of the court a quo finding accused PRIMO
tags were no longer visible. 26 None was shown in this case. Although a child's "SONNY" CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to
testimony must be received with due consideration on account of her tender death and to pay damages is MODIFIED. He is instead found guilty of
age, the Court endeavors at the same time to harness only what in her story ATTEMPTED RAPE and sentenced to an indeterminate prison term of eight
appears to be true, acutely aware of the equally guaranteed rights of the (8) years four (4) months and ten (10) days of prision mayor medium as
accused. Thus, we have to conclude that even on the basis of the testimony of minimum, to fourteen (14) years ten (10) months and twenty (20) days
Crysthel alone the accused cannot be held liable for consummated rape; of reclusion temporal medium as maximum. Costs de oficio.
worse, be sentenced to death.1âwphi1
SO ORDERED.1âwphi1.nêt
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. Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing,
As Dr. Aurea P. Villena explained, although the absence of complete Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr.,
penetration of the hymen does not negate the possibility of contact, she JJ., concur.
clarified that there was no medical basis to hold that there was sexual contact Pnganiban, J., in the result.
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