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EN BANC

G.R. No. 142749 March 18, 2003

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

PUNO, J.:

"The family is under attack," declared the Pope in the recently concluded Third World Meeting of Families. With the
growing number of incestuous rape cases, however, it is unfortunate that one such attack comes from within the
family.

WENNA GAVINO charged her father, appellant BERNARDO C. GAVINO, with multiple rape in an Information which
reads:

"That sometime in the year 1989 and up to March 10, 1995 in the premises and vicinity particularly at the
house of the accused located at Purok 9, Poblacion, Prosperidad, Agusan del Sur, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused by force, threats and intimidation, with lewd
design, did then and there wilfully, unlawfully and feloniously succeed in having sexual intercourse with his
own daughter WENNA GAVINO, a girl who (was) then nine (9) years of age, of good reputation, against her
will and consent to the damage and prejudice of the said victim consisting of moral, actual and compensatory
damages.

CONTRARY TO LAW. Article 335 of the Revised Penal Code."1

Wenna, a resident of Purok 9, Prosperidad, Agusan del Sur, recounted the sexual betrayal she suffered in the hands
of her own father, the appellant. Sometime in 1989, Wenna, then nine (9) years old, was ordered by the appellant to
sleep beside him in the bedroom. When she refused, the appellant got mad and she had to obey him. Her younger
brothers slept in the living room while her mother spent the night in the town of Gakob where she had a teaching
job. Wenna was only able to sleep briefly that night for, at about midnight, the appellant, wearing a sando and brief,
suddenly pulled her close to him. He hit her thrice on the abdomen and she felt dizzy. He then made her lie on the
bed with her back against him. He inserted his fingers into her organ before he finally penetrated her. Wenna felt
intense pain but could not shout for help as the appellant covered her mouth with his palm. While molesting her,
appellant told her that it was she he loved and not her mother.

After satiating his savage urge, appellant left the bedroom and repaired to the living room. Wenna continued to lie
on the bed. She touched her organ and felt it bleeding. She wreathed with pain, too weak to move. Sleep eluded her
that night. She kept silent about her ordeal as the appellant threatened to kill her, her mother and siblings should
she reveal her defilement.

Appellant’s sexual assaults on Wenna continued for the next six (6) years, until Wenna reached the age of fifteen.
Wenna recounted that she was last abused on March 10, 1995, at about 6:30 a.m. Her mother was then outside the
house, bathing at the spring. The appellant ordered her brothers to go to school earlier than usual. Then, alone in
the house, Wenna was pulled by the appellant to the bedroom. He hit her abdomen and kicked her back. He then
lifted her, dropped her on the wooden bed and succeeded on having carnal knowledge of her. Pain engulfed her
body.
Wenna finally decided to break her silence. She reported to her science teacher, Ms. Ismael, that the appellant had
been beating her up. Nonetheless, she did not disclose the sexual abuses she suffered in the hands of the appellant
out of embarassment. Ms. Ismael advised her to seek the assistance of the DSWD. Accompanied by a friend,
Wenna summoned enough courage to reveal her sexual molestations to the DSWD in Cagayan de Oro City. A
DSWD personnel accompanied her to the police station where she executed a statement. They proceeded to the
Patin-ay Provincial Hospital for medical examination and then to the Bahbah Municipal Trial Court for preliminary
investigation. Wenna was placed under the protective custody of the DSWD in Cagayan de Oro City for her total
rehabilitation.2

On February 2, 1996, after the filing of the rape charges, Wenna was accosted by her mother Estelita, Neneng
Amper and Dodong Angub in her school in Cagayan de Oro City. They forced her to go with them to Agusan del Sur.
On February 7, 1996, Wenna and her mother fetched Pastor Elizardo Amper and then proceeded to the house of
Atty. Germiniano Demecillo, appellant’s counsel in the rape cases. Atty. Demecillo directed Wenna to sign a
document.3 She inquired about the nature of the document but her mother dismissed her query. Her mother
threatened that she would not be able to return to Cagayan de Oro City unless she affixed her signature on the
document. She signed even as she could not see or read its contents as Atty. Demecillo covered its upper portion.

Thereafter, Wenna asked her mother if she could return to Cagayan de Oro City as she had a school examination.
Her mother refused but Wenna was able to return to the DSWD in Cagayan de Oro City a week later. She told social
worker Evelyn Sagusay that her mother forced her to sign a piece of paper. Evelyn suspected that the document
was a desistance and would be used to cause the dismissal of the rape charges against the appellant. Wenna grew
apprehensive. She went to the NBI and executed an affidavit of retraction4 deposing that she signed the desistance
under duress.5

Wenna’s testimony was corroborated by social worker CATALINA JOMOCAN.6 Likewise, DR. FLORIANO
MANTILLA, who examined Wenna on the day she was last abused by the appellant, corroborated her claim of
defloration. His medical examination revealed that Wenna’s organ had a gaping introitus or vaginal canal; there
were also fresh and healed lacerated wounds on the fourchette; and, Wenna’s organ admitted two (2) fingers with
ease, indicating her non-virgin state.7

The defense proffered the theory that Wenna filed the rape charges to get back at the accused. ESTELITA GAVINO,
appellant’s wife, testified that throughout their marriage, appellant never hurt her and had been a loving and caring
father to all their children. The rape charges were precipitated by the February 13, 1995 incident when Wenna came
home late. Estelita and the appellant noticed a stain on Wenna’s skirt, near her buttocks. Upon questioning, Wenna
revealed that she has been sexually abused but refused to identify the culprit. They did not persist to know his
identity and allowed Wenna to rest.

Estelita then sought the help of NENENG AMPER, a friend of their family at the United Pentecostal Church. Neneng
tried to discuss with Wenna about the reported sexual assault but the latter initially kept silent. On February 15,
1995, Neneng accompanied Wenna to a doctor for physical examination. On their way, Wenna confided to Neneng
that she had sexual congress with her boyfriend Lino Racho. She, however, requested Neneng not to reveal
anything to her parents as she wanted to tell them herself. At the hospital, the doctor refused to examine Wenna for
lack of referral from a government physician authorizing him to perform the examination on the alleged rape victim.

As she wanted, Wenna later divulged to her parents that it was Lino Racho who sexually assaulted her. The
revelation angered the appellant. They did not, however, file a complaint against Lino as Wenna did not want to see
him put behind bars. On March 3, 1995, Neneng and Lino Racho’s mother went to the Gavinos to ask for Wenna’s
hand in marriage.

On March 10, 1995, Wenna did not return to their house. Estelita asked the appellant to look for her. That same day,
appellant was arrested by the police as a suspect in the rape charges. Estelita brought Lino Racho to the police
headquarters to shed light on the charges but the police officers refused to investigate him as he was not implicated
by Wenna in her complaints.

On cross-examination, Estelita admitted that she, Neneng and other relatives fetched Wenna from Cagayan de Oro
and brought her to the office of Fiscal Clapis where she signed the affidavit repudiating her charges of rape against
the appellant.8

NENITA "Neneng" AMPER, a friend of the Gavinos in the United Pentecostal Church, testified that she has known
the accused since 1989 as they lived in the same barangay. He was a good father and provider. Neneng said that
Wenna admitted to her that her boyfriend Lino Racho was the one who raped her. On cross-examination, however,
Neneng confirmed that on February 2, 1996, she accompanied Estelita to Cagayan de Oro to visit Wenna. She
claimed she could not recall whether they brought Wenna to the house of Atty. Demecillo, counsel of the appellant.9
LEODEGARIO PULIDO, a neighbor and co-worker of the appellant, attested to his good moral character. He said he
never noticed any unusual incident in the appellant’s house during the alleged six (6) years’ molestation of Wenna
by the appellant. He confirmed that Wenna had a boyfriend named Lino Racho and that sometimes Lino visited
Wenna in his house. Wenna’s parents suspected about the relationship when Wenna started going home late from
school. On March 10, 1995, at about 6:30 a.m., the date when the appellant allegedly last molested Wenna,
Leodegario was in his house and heard how Wenna was scolded by her parents.10

ELIZARDO F. AMPER, Neneng’s husband and a neighbor of the appellant since 1989, is a pastor at the United
Pentecostal Church to which appellant’s family belonged. On February 5, 1996, Wenna and her mother fetched
Elizardo from his house. They proceeded to Atty. Demecillo as Wenna wanted to repudiate her statements charging
appellant with rape. After Atty. Demecillo prepared her affidavit of retraction, they all repaired to Prosecutor Clapis
where Wenna attested to the veracity of its contents. However, Elizardo said that he was not aware whether a
promise of reward was made to Wenna or whether she was coerced or intimidated to sign her affidavit.11

ATTY. GERMINIANO A. DEMECILLO, the lawyer representing the appellant in the rape case, testified that Wenna
requested him to prepare her affidavit of retraction. She was then with her mother Estelita, Neneng and Pastor
Elizardo. He prepared the affidavit upon the prodding of Wenna and her mother. He first interviewed Wenna and
then prepared the affidavit after satisfying himself that Wenna wanted him to repudiate her statements in connection
with the rape charges. He, however, refused to notarize the affidavit as he was appellant’s counsel.12

The appellant testified that he has five (5) children -- a girl and four boys. He has never maltreated his wife and is a
good father to his children. He has provided Wenna with everything she needed. The only time he lifted a hand
against Wenna was when he discovered her sexual relationship with Lino Racho. Wenna insisted on marrying Lino
but he refused to give his consent as he wanted Wenna to finish her schooling first. In retaliation, Wenna filed rape
charges against him.13

After trial, the court found the appellant guilty of qualified rape and sentenced him to the supreme penalty of death,
thus:

"WHEREFORE, the Court finds accused BERNARDO C. GAVINO, GUILTY beyond reasonable doubt as
principal in the crime of RAPE as defined and penalized under Article 335 of the Revised Penal Code as
amended by R.A. No. 7659, Section 11 thereof and hereby imposes upon the accused Bernardo C. Gavino
the penalty of DEATH; to pay the victim Wenna S. Gavino civil indemnity in the amount of FIFTY THOUSAND
(P50,000.00) PESOS and the costs."14

Hence, the automatic review of the case by this Court.

Appellant contends that his guilt was not proved beyond reasonable doubt. He argues that Wenna’s testimony is not
worthy of credit. He opines that it is unbelievable for Wenna to have experienced pain when she was last abused in
March, 1995 considering her claim that appellant had been sexually molesting her since she was nine (9) years old.
Appellant likewise insists that Wenna’s failure to report to her mother the continued assault on her virtue for six (6)
years further detracts from her credibility.

Appellant’s attempt to discredit Wenna is unconvincing. First, Wenna’s testimony that she suffered pain when she
was last molested by the appellant is not inconceivable. The evidence shows that on the last sexual assault,
appellant hit Wenna on the abdomen and kicked her back. He then lifted the weakened girl, dropped her on the
wooden bed and ravished her. Clearly, the physical attack that preceded the molestation contributed to the pain of
Wenna. Second, the reluctance and delay of Wenna in reporting the series of incestuous abuses she suffered for
many years is not necessarily indicative of a fabricated charge. The delay is due to the pattern of fear instilled by the
appellant on Wenna. The sexual assaults were accompanied with death threats from appellant who exercised moral
ascendancy over her.

Neither do we agree with appellant’s contention that the trial court overlooked the nefarious motive of Wenna in
accusing him of rape. We adhere to the settled rule that the calibration of the credibility of a witness is best left to the
discretion of the trial judge who was able to observe the demeanor of the witness while testifying. In giving more
weight to Wenna’s testimony, the trial court found her testimony to be sincere and straightforward as she narrated in
detail the manner by which she was ravished by the appellant.15 The trial court also took note of Wenna’s agony as
her testimony throughout the trial was punctuated by uncontrollable bursts of tears.16 Moreover, her positive
testimony of forcible defloration was corroborated by the results of the physical examination conducted on her. It is
settled that the existence of lacerations, coupled with the victim’s testimony, are the best physical evidence of sexual
abuse.17 In contrast, we find the defense adduced by the appellant to be flimsy. First, it is unnatural for a naïve,
barrio lass to accuse her father of such a grave, personal offense and expose herself and her family to social
humiliation if it were not true. Second, the defense’s attempt to shift the blame on Lino Racho has to fail for lack of
evidence.
Appellant likewise insists that the trial court failed to give due weight to Wenna’s affidavit of retraction considering
that its execution and signing was attended by defense witnesses Atty. Demecillo and Pastor Elizardo. We are not
persuaded. For one, Atty. Demecillo who prepared Wenna’s affidavit of retraction cannot be considered a neutral
witness as he was the counsel of appellant during the trial of these cases. Thus, his testimony as to the alleged
voluntary execution of Wenna’s affidavit of retraction is immediately suspect. Secondly, Pastor Felizardo admitted
during the trial that he was unaware whether Wenna signed the affidavit due to threats or a promise of reward.
Thirdly, it is of judicial notice that an affidavit of desistance or retraction is easily procured through intimidation, threat
or a promise of reward. Courts thus view such affidavit with suspicion and reservation.18 In the case at bar, the
prosecution duly established that Wenna signed the affidavit of retraction under duress. Her relatives accosted her
in school while she was under the custody of the DSWD and took her to Agusan to sign the said affidavit. Its content
was not explained to Wenna nor was she given a chance to read it. She was forced to sign the affidavit as she was
threatened that she could not return to Cagayan de Oro City if she refused.

Coming now to the penalty, appellant rightly impugns the correctness of the sentence imposed by the trial court as
the prosecution failed to adduce evidence to prove the qualifying circumstances of the victim’s minority and her
filiation with the accused. In People vs. Ramirez,19 the Court en banc laid down the guidelines for the proper
appreciation of minority either as an element of a crime or as a qualifying circumstance. It held that: (1) the best
evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of
such party; (2) in its absence, similar authentic documents such as baptismal certificate and school records which
show the date of birth of the victim would suffice to prove age; (3) if the certificate of live birth or authentic document
is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s
mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting
pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules
of Evidence shall be sufficient; and, (4) in the absence of all the above, the complainant’s testimony will suffice
provided it is expressly and clearly admitted by the appellant.

In the case at bar, no birth certificate or similar authentic document was offered by the prosecution to prove Wenna’s
minority. Neither was it shown that they were lost, destroyed or unavailable at the time of the trial. The testimony of
the mother or the victim relative to the latter’s age cannot be accepted as adequate proof thereof. In addition, we
note that the prosecution failed to adduce independent proof to establish appellant’s relationship with the victim.
Although Wenna’s filiation to appellant and minority was neither refuted nor contested by the defense, proof thereof
is critical considering the penalty of death imposed for qualified rape. Thus, the prosecution’s failure to sufficiently
establish Wenna’s minority and relationship to appellant bars the latter’s conviction for qualified rape and the
imposition of the extreme penalty of death.

On a last note, we find that the trial court erred in finding the appellant guilty of only one (1) count of rape
considering that the Information charged appellant with multiple rape and the commission of two (2) counts of simple
rape was established beyond reasonable doubt by the prosecution at the trial.

IN VIEW WHEREOF, the appealed Decision is modified. Appellant BERNARDO C. GAVINO is found guilty of two
(2) counts of simple rape. He is sentenced to suffer the penalty of reclusion perpetua for each count and to pay
Wenna Gavino the total amount of two hundred thousand pesos (P200,000.00), broken down as follows: fifty
thousand pesos (P50,000.00) as civil indemnity for each count of rape, and another fifty thousand pesos
(P50,000.00) as moral damages also for each count.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.
Ynares-Santiago, J., on leave.

Footnotes
1 Rollo at 7.

2 September 6, 1995 TSN at 2-16; September 7, 1995 TSN at 8-33; November 6, 1997 TSN at 2-6.

3 Records at 139; The document turned out to be an affidavit of desistance where Wenna retracted her
testimony during the investigation of the rape cases and her court testimony relative to the rape cases.
4 Records at 140.

5 November 6, 1997 TSN at 7-11.

7 Medical Certificate, Records at 6; September 7, 1995 TSN at 2-8.

8 May 20, 1998 TSN at 2-13.

9 October 7, 1998 TSN at 2-13.

10 January 11, 1996 TSN at 1-7.

11 July 7, 1999 TSN at 3-6.

12 Id. at 7- 9.

13 July 8, 1999 TSN at 2-7.

14 Decision, dated February 10, 2000; Rollo at 57.

15 RTC Decision at 7; Rollo at 26.

16 Id. at 8; Id. at 27.

17 People vs. Belen, G.R. Nos. 137991-92, June 10, 2002.

18 People vs. Bertulfo, G.R. No. 143790, May 7, 2002.

19 G.R. No. 138471, October 10, 2002.

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