Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-69778 November 8, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SIXTO TABAGO, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Lorna Patajo-Kapunan counsel de oficio for accused appellant.

PADILLA, J.:

In Criminal Case No. Q-21679 of the Court of First Instance of Rizal, Quezon City Branch, Sixto Tabago Y Asuncion alias "Tabski" was
charged with the crime of Robbery with Rape committed as follows:

That on or about the 27th day of August, 1982, in Quezon City, Metro Manila,
Philippines; the above-named accused with violence against and/or intimidation of
person, did then and there, wilfully, unlawfully and feloniously rob one Leni Chavez y
Espiritu inside her residence located at Solomon Street, Duque District, Camp
Aguinaldo, this City, by then and there passing through the window of said house
and once inside, accused at gun point robbed and divested said Leni Chavez y
Espiritu of her cash money amounting to Pl20.00, Philippine Currency; that on the
occasion thereof and with the use of same gun, accused by means of force or
intimidation, pointing said gun at the offended party forced her to take a tablet
rendering her unconscious, after which accused did then and there, wilfully,
unlawfully and feloniously have carnal knowledge of the said Leni Chavez y Espiritu,
all done against the will and without the consent of the offended party, to her damage
and prejudice in the total amount aforementioned and in such amount as may be
awarded to her under the provisions of the Civil Code of the Philippines. (Original
Record, p. 1)

After trial, Judge Jose P. Arro found the accused guilty as charged and sentenced him to suffer the
death penalty and to indemnify the victim Leni Chavez in the amount of P15,000.00 as damages.

In view of the penalty imposed, the record of the case was forwarded to this Court for review. With
the commutation of the death penalty to reclusion perpetua, pursuant to Art. III, Sec. 19(l) of the
1987 Constitution, the defendant was asked if he wanted to continue with this case as an appealed
case, and he manifested in the affirmative.

The facts of the case, as stated by the Solicitor General in his brief, are as follows:

At or about 9:00 o'clock in the morning of August 27, 1982, Sixto Tabago and Danilo
Abanilla went to the residence of Sgt. Menardo Camerino at Solomon St., Quezon
City. There they saw Leni Chavez, single, 17-year old maid of Sgt. Camerino, taking
 care of his 2-year old child and a 4-month old baby. Tabago asked Leni who her
companions were and she told him that only the two children under care were with
her. On hearing this, Tabago left and proceeded to a near by basketball court (pp. 3-
5, tsn, April 27, 1983).

Later, at or about 3:00 o'clock in the afternoon Tabago returned to the Camerino
residence, entering the house through an open front window. Once inside, he forced
a handkerchief into the mouth of Leni to gag her. At that time, the two children were
asleep. Tabago then pointed a gun at Leni's neck and demanded money from her.
Holding her by the hands, he dragged her to her bedroom There, Leni was forced to
yield the P120.00 kept with her clothings inside a carnation box.

Tabago then kissed Leni and undressed her. And with Leni's body pressed between
his thighs, he removed the handkerchief from her, mouth, forced it open, and made
her swallow a white tablet. After a while, Leni began to feel weak and she fell asleep
(pp. 6-12, tsn, Id.).

About an hour or so later, Leni woke up. Her blood-stained panty was already on the
bed, her private part was painful, and it had blood. Realizing that Tabago had raped
her, she cried and told her- employer about it. She was brought by her employer to
the house of Tabago at about 5:00 o'clock in the afternoon of the same day but he
was not around. Then they proceeded to the headquarters of the Provost Marshal
where Leni gave a sworn statement to Sgt. Mardonio Alipao (Exhs. 'A' and 'A-l') (pp.
12-18, tsn, Id.).

Leni Chavez was physically examined by Lt. Col. Gregorio Blanco, MC (PC) Chief in
the morning of August 28, 1982. His findings revealed that she had long ceased to
be a virgin, having had sexual intercourse, as evidenced by a "healed laceration,"
least ten days before her examination. However, the presence of an "abraided vulvar
mucosa" or unhealed abrasion indicated that, aside from that previous intercourse,
she had one close to the time of the examination. As explained by the examining
physician.

This vulvar mucosa which I have stated here refers to the area surrounding the
vaginal orifice, and when I say abraided, there was abrasion, and in plain language,
may be we call it "gasgas," so that it is the area where I mentioned as abraided
vulvar mucosa connoting that there was recent sexual intercourse because if this
was not found we can say that the sexual intercourse had been done quite some
time ago. (p. 22, tsn, May 13, 1983).

On cross-examination, the attending physician testified thus—

Q Now doctor, you said in your examination that there was recent
sexual intercourse?

A I would say that, if it is fresh abraided vulvar mucosa, it is three

days, that is one to three. (pp. 26-27, tsn, Id.).

xxx xxx xxx

Q And what was the basis of your conclusion that there was a recent
intercourse, doctor?
 A Because of the presence of the abraided vulvar mucosa.

Q How about in the area around the vagina, were there any fresh
abrasion or laceration, doctor?

A ... I said those are the areas around the vaginal orifice. .. The
abrasions are those in the area surrounding the Vaginal orifice.

xxx xxx xxx

Q Except the abrasion in the neck there are no others?

A No more except the abrasions in the neck and the presence of

abraided vulvar mucosa, those are the points I considered that there
was recent sexual intercourse, sir. (pp. 27-28, tsn, Id.).' (Appellee's
Brief, pp. 2-6, Rollo, pp. 141-145)

The accused, Sixto Tabago, upon the other hand, denied having committed the crime imputed to
him and interposed the defense of alibi. He testified that he and Danilo Abanilla went to have a
haircut at the barber shop, located beside the house of the complainant, at about 9:00 o'clock in the
morning of 27 August 1982. While he was in the barber shop, he saw the complainant, Leni Chavez,
taking care of a small child. But, he did not go to her. Since the barber did not come, he and his
companion went home to the PMA detachment barracks where he lived, which is about 200 meters
from the barber shop. He stayed in the barracks, where he helped in fixing the wheels of a motor
vehicle until 3:00 o'clock in the afternoon when he and Junior, Pastolero, Sibal and others went to
the basketball court of Alpha Company, about 400 meters from the barber shop. He played center
against the opposing team of soldiers from the KKK and did not leave the game at any time. The
game ended at 5:00 o'clock in the afternoon and then he went with Pastolero, Sibal and Junior to the
market at Camp Murphy, where they stayed until 7:00 o'clock in the evening. He denied wearing a
jacket in going to the basketball court as he does not own one. He stated that he was wearing only a
T-shirt and maong pants in going to the basketball court. He also denied having gone to the house of
the complainant on that day, He further denied having a gun in 1982 and robbing Leni Chavez of
P120.00, or that he wore a mask or passed through the window of the house of the complainant. 1

Defendant's testimony is corroborated by Simeon Callejo and Joselito Pastolero who both claimed
that they were with the accused from 3:00 o'clock in the afternoon of 27 August 1982 until 7:00
o'clock in the evening of the same day.

In this appeal, the defendant contends that the trial court erred in finding him guilty of the crime
charged on the basis of the uncorroborated and contradictory testimony of the complainant.

It has been consistently held, however, that in a prosecution for rape, the accused may be convicted
even on the sole basis of complainant's testimony, if credible. 2 We have examined the record of the
case with great care and we find no cogent reason to reverse and set aside the decision of the trial
court. We are convinced that the defendant committed the offense complained of in the manner
testified to by the complainant. The testimony of the complainant appears to be natural and
convincing and includes details consistent with human nature and the course of things. Besides,
there is no showing, much less a hint, of ill-motive on the part of the complainant to impute to the
defendant the commission of so serious an offense which carries with it the maximum penalty, and
to testify falsely against him if it were not true.
Moreover, the issue raised by the defendant is one involving credibility of witnesses and it suffices to
re-state the well-settled principle that this Court has invariably respected the findings of fact of a trial
judge who was in a position to weigh and appraise the testimony before him, except when
circumstances of weight or influence were ignored or disregarded by him, which do not obtain in this
case.

Furthermore, the defense of alibi of the defendant is not creditable as he had been positively
Identified by the complainant. It is contended, in this connection, that the complainant could not have
Identified the defendant as her assailant because the person who robbed and attacked her was
wearing a mask. But, while it may be true that the complainant had testified that the person who
robbed and then raped her was wearing a mask, she also said that only the lower portion of the face
was covered—he was covered only up to the eyes. 3 Other parts of the body were visible and clearly
distinguishable in broad daylight.

Asked how she was able to Identify the defendant to be her assailant, the complainant declared:

Q How did you know that it was Tabago, because his face was
covered?

A Because he was wearing the same dress when he asked me on

that morning when he entered, with the same hair, face, build and his
rubber shoes.

Q By the way, how long did you know Tabago before that date?

A For around one month. 4

It was not also proven by the defendant that it was impossible for him to be at the scene of the crime
when it was committed considering the proximity of the basketball court to the house of Sgt.
Camerino where the crime was committed. His testimony that he played basketball, which is a fast
and debilitating game for two (2) continuous hours, without substitution, is exaggerated and not
worthy of belief.

Counsel for the defendant also assails the veracity of the claim of the complainant that she was
raped by the defendant in the manner described by her, in view of the absence of fresh lacerations
in the hymen of the complainant; the vaginal canal was negative for spermatozoa; absence of traces
of drugs in the blood stream of the complainant; and the failure to present the torn dress and blood-
stained underwear worn by her.

Indeed, the medico-legal report (Exh. B) does not show fresh lacerations in the hymen of the
complainant. The medical examiner found, however, an "abraided vulvar mucosa" or fresh abrasions
("gasgas") in the vaginal orifice of the complainant which would indicate that the complainant had
sexual intercourse soon before examination. His testimony reads:

Q Now, in plain language also, Mr. Witness, can you explain this
technical word or technical words "vulvar mucosa"?

A This vulvar mucosa which I have stated here refers to the area
surrounding the vaginal orifice, and when I say abraided, there was
an abrasion, and in plain language, maybe, we call it 'gasgas,' so that
is the area where I mentioned as abraided vulvar mucosa connoting
 that there was recent sexual intercourse because if this was not
found we can say that the sexual intercourse had been done quite
some time ago. 5

His testimony on cross-examination reads as follows:

Q Now doctor, you said in your examination that there was a recent
sexual intercourse.

A I would say that, if it is fresh abraided vulvar mucosa, it is three

days, that is one to three.

Q Did you find in your examination whether there was a sperm?

A It is negative.

Q How about fresh lacerations were there any?

A There was no more fresh laceration but instead, I was able to find
healed laceration, sir.

Q And what was the basis of your conclusion that there was a recent
intercourse, doctor?

A Because of the presence of the abraided vulvar mucosa. 6

In any event, the absence of fresh lacerations in the hymen of the complainant would not preclude a
finding that she was raped, considering that the female sex organ is an elastic membrane and, as
counsel for the defendant pointed out in her brief, the complainant was no longer a virgin on the day
she was raped.

The absence of spermatozoa in the vagina of the complainant is not also a legal obstacle to a finding
that rape had been committed because the important consideration in rape is penetration and not
emission. 7 Besides, spermatozoa cannot be detected after a few hours since it will have dried up. 8

It is also possible that the defendant emitted the sperm cells outside the vagina.

The absence of traces of opium derivatives, barbiturates, amphetamine, methaqualone, valium and
mogadon in the blood stream of the complainant, as stated in the forensic report (Exh. 1) is not
conclusive that the complainant was not forced by the defendant to swallow a white pill which made
her lose consciousness. As stated by the Solicitor General, there are a variety of sleep-drugs in the
market and there is need for assurance that tests for all these drugs have been undertaken before
complainant's testimony could be disregarded.

The failure of the prosecution to present the torn dress and underwear of the complainant is not fatal
to the case for the prosecution because said articles are not indispensable evidence to prove rape. 9

Counsel for the defendant further contends that it was impossible for the offense to have been
committed, as testified to by the complainant, considering that the place where it was allegedly
committed was inside a housing site in Camp Aguinaldo where the houses are very close to each
other and a scream would have summoned the neighbors; besides, it was broad daylight.
This contention is manifestly untenable. The crime of rape has been committed in vicinities or places
where people congregate such as parks or by the roadside or even Within school premises where
people abound. 10 Besides, it would appear that the offense was committed inside the house of Sgt.
Camerino with nobody else around except two sleeping children, and the complainant could not
scream because she was threatened with a gun and then gagged with a handkerchief, after which
she was forced to swallow a pill which made her unconscious.

WHEREFORE, the judgment appealed from is hereby AFFIRMED with the modification that the
penalty imposed upon the defendant-appellant is reduced to reclusion perpetua, but the indemnity to
be paid to the offended party is increased to P20,000.00.

SO ORDERED.