G.R. Nos. 112761-65 February 3, 1997PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.PORFERIO . PEPITO, accused-appellant. P!NO, J.:Accused-appellant PORFERIO PEPITO appeals from the Decision of the trial court convicting him of alversation of Pu!lic Funds through Falsification of Official Documents on five "#$ counts.Appellant, as Acting Postmaster of Iligan %it&, 'as charged 'ith misappropriating government funds !& manipulating his records and ma(ing it appear that he paid a num!er of postal mone& orders although no such pa&ments 'ere made. Appellant 'as found short in his cash accounts, as follo's) "a$ P*+,,-+..+ for Octo!er /0.#1 1 "!$ P//.2. for Decem!er /0.#. 2 "c$ P.,*3+.#0 for the month of 4anuar& /0.,1 3 "d$ P+2,2#*.*# for April /0.,, and1 " "e$ P-*,+2*.0. for a& /0.,. 5E5cept for the dates and amounts involved, appellant 'as similarl& charged in five "#$ separate Informations 6 as follo's)That sometime during the month of 6666666666, in the %it& of Iligan, Philippines, and 'ithin the 7urisdiction of this 8onora!le %ourt, the said accused Porferio Pepito, Acting Postmaster of Iligan %it&, 'ith official station thereat, and as such accounta!le officer, responsi!le for funds collected and received !& him !& reason of his position, did then and there 'illfull&, unla'full& and fraudulentl& and 'ith grave a!use of confidence, misappropriate,em!e99le and ta(e a'a& government funds in his possession in the amount 6666666666 of accused emplo&ing deceit, false manifestation and fraudulent misrepresentations, manipulated his records to ma(e it appear that on the month 6666666666 of the one& Order Paid !& him 'as 6666666666 although his pa&ments amounted onl& to 6666666666 ma(ing untruthful statements in a narration of facts and that !& virtue of such falsification in his record of pa&ments, the said accused successfull& appropriated and converted to his o'n personal useand !enefit the sum of 6666666666 to the damage and pre7udiceof the :ureau of Post, anila, Philippines, in the aforementionedamount of 6666666666.%ontrar& to and in violation of Article */. and Article /./ of the Revised Penal %ode.First, the facts. In a letter, 7 dated August #, /0.,, %E;AR , Regional Director of the :ureau of Posts, Region ?, %aga&an de Oro %it&, re@uested the Office of the %it& Auditor, Iligan %it&, to audit the accounts of appellant PORFERIO PEPITO, Acting Postmaster of Iligan %it&. Earlier, an audit team from the Office of Regional Director 4uan uncovered certain anomalies regarding appellantAs postal mone& order transactions at the Iligan %it& Post Office. 8o'ever, due to lac( of time, the team failed to determine the e5act figure involved in the anomal&. 8ence, their re@uest forassistance from the %it& AuditorAs Office. #Iligan %it& Auditor FRA>%I;%O APARE%E immediatel& formed an audit team composed of Assistant %it& Auditor 8O>ORIO >. PA:o. *.3, considering that the amount misappropriated 'as P//.2., according to Article -3 of the Revised Penal %ode, the penalt& for the most serious crime shall!e imposed in its ma5imum period, thus, accused should !e meted out the penalt& prescri!ed in Article /./ and in appl&ing the provisions of the indeterminate sentence la', accused should !e meted the indeterminate prison terms of si5 ",$ &ears prision correctional to t'elve "/*$ &ears prision mayor.+. As to %riminal %ase >o. *.-, since the amount malversed 'asP.,*3+..0, accused should !e penali9ed according to Paragraph>o. + of Article */. of the Revised Penal %ode and should !e meted out an indeterminate penalt& of ten "/2$ &ears and one "/$da& of prision mayor to fourteen "/-$ &ears and eight "3$ months of reclusion temporal.-. As to %riminal %ase >o. *.#, considering that the amount misappropriated is P+2,2#*.*2, the penalt& imposed should !e a(in to the penalt& prescri!ed in %riminal %ase >o. *.. mentioned in Paragraph / hereof, 'hich is reclusion perpetua1 and#. As to %riminal %ase >o. *.,, considering that the amount su!7ect of malversation is P+.,##3.+2, then the necessar& penalt& of reclusion perpetua should also !e meted out against accused.Finall&, accused is also here!& ordered to pa& the government the total sum of P03,#-0.00, 'hich is the aggregate government funds actuall& misappropriated, for restitution in accordance 'ith Article /2- of the Revised Penal %ode.;O ORDERED.8ence this appeal 'here appellant contends that)I. T8E TRIA< %O=RT ERRED I> DE>EI>B T8E A%%=;ED-APPE TO ;=;PE>D T8E PRO%EEDI>B; OF T8E %A;E; PE>DI>B FI>A< A%TIO> O> T8E %O>DITIO>A< A>E;TE BRA>TED TO T8E APPE %O>FI%TI>B T8E A%%=;ED-APPET;1 A>DIII. T8E TRIA< %O=RT ERRED I> FAIB TO %O>;IDER FOTARE ;=RRE>DER I> FAFOR OF T8E A%%=;ED-APPEIA$ in Taclo!an %it&, IA pursuant to the ver!al instructions of the regional director of the Administration.rs. utia testified that she too( steps to o!tain either a permanent or at the least a rene'ed appointment1 that 'hen she approached the regional director a!out the matter she 'as advised to see the petitioner 'ho 'as to determine the emplo&ees to !e appointed or promoted1 and that the petitioner refused to attend to her appointment papers unless the latter 'ere given some mone&.On Fe!ruar& *., /03-, rs. utia reported her pro!lem to the Philippine %onsta!ular& "P%$ authorities in the province. The P% officials told her that steps 'ere to !e ta(en to entrap the petitioner. The entrapment e@uipment consisted of mar(ed paper mone& !ills 'orth P/22.22. The P% officials concerned 'ere colleagues of the hus!and of rs. utia in the P%.The first attempt to entrap the petitioner 'as on Fe!ruar& *3, /03-. The plan did not materiali9e as the petitioner did not sho' up at the designated rende9vous at the >IA !uilding canteen.The second attempt 'as on Fe!ruar& *0,/03-, this time 'ith results. That morning, the petitioner and rs. utia met in their service !us on their 'a&to 'or(. The t'o 'omen supposedl& agreed to meet at the canteen later that morning at 0)22 oAcloc(. Thereafter, rs. utia notified the P% authorities 'ho 'ere to arrange the entrapment. The P% soldiers involved in the arrangement 'ere Identified as ;ergeants Eddie :on7oc, Efren A!anes and Ignacio o. /,2,, as amended, governs the procedure through 'hich cases originating from the ;andigan!a&an are elevated to this %ourt. 5 =nder ;ection . thereof, the decisions and final orders of the ;andigan!a&an are su!7ect to revie' on certiorari !& the ;upreme %ourt inaccordance 'ith Rule -# of the Rules of %ourt. This %ourt has ruled that onl& @uestions of la' ma& !e raised in a petition for certiorari under Rule -#, su!7ect to certain rare e5ceptions. 6 ;impl& stated, one 'a& 7 through 'hich a decision or final order of the ;andigan!a&an can !e elevated to the ;upreme %ourt is a Petition for certiorari under Rule -# and, as a general rule, onl& @uestions of la' ma& !e raised therein. The ;olicitor Beneral cites the case of &e(averde v Sandigan'ayan # in support of this vie'.Boing no' to the @uestion of la' raised in the instant Petition, De !elieve that the ruling in &eople v A'esamis, contrar& to the contention of the petitioner, is authorit& for the vie' that the allegation of facts, not the denomination of the offense !& the prosecutor, determines the crime charged. Anent the argument on the correctness of the ruling, the petitionerhad not succeeded in sho'ing an& cogent !asis for reversing or modif&ing the same.The remaining argument that the 7udgment of conviction is not supported !& the evidence raises a @uestion of fact inasmuch as the resolution of the issue 'ould re@uire this %ourt to sort out and re-e5amine the evidence presented in the trial. Invo(ing the ruling of this %ourt in &e(averde v Sandigan'ayan, the ;olicitor Beneral moves for the denial of the Petition. The ;olicitor Beneral adds that the credi!ilit& of 'itnesses is a matter !etter left to the appreciation of the trial court, in this case, the ;andigan!a&an.Indeed, the general rule is that onl& @uestions of la' ma& !e raised in a petition of this character. The general rule admits e5ceptions, one of 'hich is 'hen the findings of fact made !& the trial court overloo(ed certain facts of su!stance and value 'hich, if considered, might affect the result of the case. This o!servation 'as made !& this court in &e(averde v Sandigan'ayan, cited !& the ;olicitor Beneral, to 'it HDith respect to the allegation that there 'as error on the part of respondent ;andigan!a&an in concluding that petitioners conspired in the commission of the offense, suffice it to sa& that the !asis of its finding 'as the credi!ilit& of 'itnesses. Pursuant to ;ection . of Presidential Decree >o. /,2,, in relation to ;ection *, Rule -# of the Rules of %ourt, the findings of fact of the ;andigan!a&an are entitled to great respect and onl& @uestions of la's "sic$ ma& !e raised to the ;upreme %ourt. :esides, 'ell settled is the rule that the findings of "the$ trial court on credi!ilit& of 'itnesses 'ill not !e distur!ed unless much findings overloo( certain facts of su!stance and value 'hich, if considered might affect "the$ results of "the$ case. 9De !elieve that the e5ception to the general rule calls for application in thiscase.The fundamental a5iom underl&ing a criminal prosecution is that !efore theaccused ma& !e convicted of an& crime, his guilt must !e proved !e&ond reasona!le dou!t. Thus, if there are su!stantial facts 'hich 'ere overloo(ed !& the trial court !ut 'hich could alter the results of the case in favor of the accused, then such facts should !e carefull& ta(en into account !& the revie'ing tri!unal.In the case !efore =s, there are su!stantial facts and circumstances Dhichappear to !e favora!le to the accused !ut 'hich 'ere not carefull& considered !& the ;andigan!a&an. The failure to do so is most unfortunate considering that the ;andigan!a&an is the first and last recourse of the accused !efore her case reaches the ;upreme %ourt 'here findings of factare generall& conclusive and !inding.The essential ingredient of indirect !ri!er& as defined in Article *// of the Revised Penal %ode 1$ is that the pu!lic officer concerned must have accepted the gift or material consideration. There must !e a clear intention on the part of the pu!lic officer to ta(e the gift so offered and consider the same as his o'n propert& from then on, such as putting a'a& the gift for safe(eeping or poc(eting the same. ere ph&sical receipt unaccompanied !& an& other sign, circumstance or act to sho' such acceptance is not sufficient to lead the court to conclude that the crime of indirect !ri!er& has !een committed. To hold other'ise 'ill encourage unscrupulous individualsto frame up pu!lic officers !& simpl& putting 'ithin their ph&sical custod& some gift, mone& or other propert&.Did the petitioner accept the supposed !ri!e mone&JThe ;andigan!a&an noted that the photographs of the entrapment sho' that the petitioner 'as accosted !& the P% soldiers after she accepted the mar(ed mone&. Against the evidence of the pro petition that the mone& 'ashanded to petitioner !& rs. utia under the ta!le is the assertion of petitioner that it 'as 'hen she stood up that rs. utia suddenl& placed something in her hand 'hich she did not (no' to !e mone& and 'hen she sa' that it 'as mone& she thre' it a'a&. 11 An e5amination of the seven photographs that 'ere allegedl& ta(en immediatel& after the passing of the mone& sho's that the petitioner 'as standing up 'hen the P% agents apprehended her. This corro!orates petitionerAs stor&. There 'as no picturesho'ing petitioner to !e seated 'hich should !e her position immediatel& after the mone& 'as handed to her under the ta!le, 'hich should !e the case according to the version of the prosecution. 12 >one of the photographs sho' the petitioner in the process of appropriating or (eeping the mone& after it 'as handed to her. T'o of the seven photographs that 'ere ta(en outside the canteen appear to !e of no relevance to the operation.As the petitioner 'as admittedl& handed the mone&, this e5plains 'h& she 'as positive for ultra-violet po'der. It is possi!le that she intended to (eep the supposed !ri!e mone& or ma& have had no intention to accept the same. These possi!ilities e5ist !ut De are not certain.8o'ever, 'hat is revealing is that rs. ;evilla and rs. Dimaano 'ere present around the ta!le in the canteen 'ith the petitioner and rs. utia 'hen the latter allegedl& handed the mone& to the petitioner. There 'ere other persons in the premises li(e the P% agents 'hose Identities petitioner possi!l& did not (no'. =nder the circumstances and in such a pu!lic place it is not pro!a!le that petitioner 'ould have the nerve to accept !ri!e mone& from rs. utia even under the ta!le. If the petitioner (ne' and 'as prepared to accept the mone& from rs. utia at the canteen, the petitioner 'ould not have invited her officemate rs. ;evilla to7oin them. rs. ;evilla stated she did not see the alleged passing of the mone&. ;he could not have seen the mone& as it 'as passed on under the ta!le or 'hen, as petitioner said it 'as @uic(l& placed in her hand 'hen she stood up. Dhat rs. ;evilla is sure of is that 'hen the& 'ere a!out to leave the canteen, t'o "*$ men approached petitioner, one of 'hom too( pictures, and the petitioner shouted at rs. utia, KDhat are &ou tr&ing to do to meJK 13 The reaction of petitioner is far from one 'ith a guilt& conscience.oral certaint&, not a!solute certaint&, is needed to support a 7udgment of conviction, oral certaint& is a certaint& that convinces and satisfies the reason and conscience of those 'ho are to act upon a given matter. 1" Dithout this standard of certaint&, it ma& not !e said that the guilt of the accused in a criminal proceeding has !een proved !e&ond reasona!le dou!t.Dith all these circumstances ta(en into account altogether, De are left at aloss as to the guilt of the accused. Overloo(ed !& the ;andigan!a&an, these facts and circumstances ma(e out a good case for the petitioner.Accordingl&, the %ourt holds that the guilt of the petitioner in %riminal %ase >o. 0,+- has not !een proved !e&ond reasona!le dou!t. ;he is, therefore,entitled to an ac@uittal.D8EREFORE, in vie' of the foregoing, the Decision of the ;andigan!a&an in %riminal %ase >o. 0,+- is here!& ;ET A;IDE. The petitioner o. +2/0, other'ise (no'n as the Anti-Braft and %orrupt Practices Act.The factual !ac(ground is as follo's)Thomas >. Tan 'as accused of @ualified theft in a complaint lodged 'ith the %it& Fiscal of Cue9on %it&. The case 'as doc(eted as I.;. >o. 3*-*0,-and assigned for investigation to the petitioner 'ho 'as then an Assistant %it& Fiscal. In the course of the investigation the petitioner demanded P-,222.22 from Tan as the price for dismissing the case. Tan reported the demand to the >ational :ureau of Investigation 'hich set up an entrapment. :ecause Tan 'as hard put to raise the re@uired amount onl& P*,222.22 in !ills 'ere mar(ed !& the >:I 'hich had to suppl& one-half thereof. The entrapment succeeded and an information 'as filed 'ith the ;andigan!a&an in %riminal %ase >o. .+0+ 'hich reads as follo's)The undersigned Tanod!a&an ;pecial Prosecutor accuses O, for Fiolation of ;ection +, paragraph "!$ ofRepu!lic Act +2/0, other'ise (no'n as the Anti-Braft and %orrupt Practices Act, committed as follo's)That on or a!out the */st da& of arch /03+, at Cue9on %it&, Philippines, and 'ithin the 7urisdiction of this 8onora!le %ourt, the a!ove-named accused, a pu!lic officer, !eing then and still is an Assistant %it& Fiscal of the Cue9on %it& FiscalAs Office, detailed as the Investigating Fiscal in the case of ARIA>>E L. . TA>, doc(eted as I.;. >o. 3*-*0,-, for Cualified Theft, ta(ing advantage of his official position and 'ith grave a!use of authorit&, did then and there 'ilfull&, unla'full& and feloniousl& demand and re@uest from Thomas >. Tan the amount of FO=R T8O=;A>D PE;O; "P-,222.22$ Philippine %urrenc&, and actuall& receivedfrom said Thomas >. Tan the amount of TDO T8O=;A>D PE;O; "P*,222.22$ Philippine %urrenc&, in consideration for a favora!le resolution !& dismissing the a!ovementioned case, 'herein said accused has to intervene in his official capacit& as such Investigating Fiscal.%O>TRARE TO o. +2/0, as amended, other'ise (no'n as the Anti-Braft and %orrupt Practices Act, and here!& sentences him to suffer the indeterminate penalt& of imprisonment ranging from ;I? ",$ EEAR; and O>E "/$ O>T8, as minimum, to >I>E "0$ EEAR; and O>E "/$ DAE, as ma5imum1 to suffer perpetual dis@ualification from pu!lic office1 to suffer loss of all retirement or gratuit& !enefits under an& la'1 and, to pa& costs.Of the sum of T'o Thousand Pesos "P*,222.22$ used in the entrapment operations, and 'hich 'as full& recovered from the accused, One Thousand Pesos "P/,222.22$ shall !e returned to private complainant Thomas >. Tan, and the other half, to the >ational :ureau of Investigation, >ational %apital Region.A motion to reconsider the decision 'as denied !& the ;andigan!a&an1 hence the instant petition.The petitioner has raised several legal @uestions plus one factual @uestion.The latter is to the effect that the ;andigan!a&an convicted him on the 'ea(ness of his defense and not on the strength of the prosecutionAs evidence. This claim is not meritorious not onl& !ecause it is not for =s to revie' the factual findings of the court a /uo !ut also !ecause a reading of its decision sho's that it e5plicitl& stated the facts esta!lishing the guilt of the petitioner and the competence of the 'itnesses 'ho testified against him.As stated a!ove, the principal issue is 'hether or not the investigation conducted !& the petitioner can !e regarded as a Kcontract or transactionK 'ithin the purvie' of ;ec. + "!$ of R.A. >o. +2/0. On this issue the petition is highl& impressed 'ith merit.The afore-mentioned provision reads as follo's);E%. +. *orrupt practices of pu'lic officers. H In addition to acts or omissions of pu!lic officers alread& penali9ed !& e5isting la', the follo'ing shall constitute corrupt practices of an& pu!lic officer and are here!& declared to !e unla'ful)"a$ ..."!$ Directl& or indirectl& re@uesting or receiving an& gift, present, share, percentage, or !enefit, for himself or for an& other person,in connection 'ith an& contract or transaction !et'een the Bovernment and an& other part&, 'herein the pu!lic officer in hisofficial capacit& has to intervene under the la'.The petitioner states)Assuming in gratia argumenti, petitionerAs guilt, the facts ma(e out a case of Direct :ri!er& defined and penali9ed under the provision of Article */2 of the Revised Penal %ode and not a violation of ;ection +, su!paragraph "!$ of Rep. Act +2/0, as amended.The evidence for the prosecution clearl& and undou!tedl& support, if at all the offense of Direct :ri!er&, 'hich is not the offense charged and is not li(e'ise included in or is necessaril& included in the offense charged, 'hich is for violation of ;ection +, su!paragraph "!$ of Rep. Act +2/0, as amended. The prosecution sho'ed that) the accused is a pu!lic officer1 in consideration of P-,222.22 'hich 'as allegedl& solicited, P*,222.22 of 'hich 'as allegedl& received, the petitioner undertoo( or promised to dismiss a criminal complaint pending preliminar& investigation !efore him, 'hich ma& or ma& not constitute a crime1 that the act of dismissing the criminal complaint pending !efore petitioner 'as related to the e5ercise of the function of his office. Therefore, it is 'ith pristine clarit& that the offense proved, if at all is Direct :ri!er&. "Petition, p. #.$=pon the other hand, the respondents claim)A reading of the a!ove-@uoted provision 'ould sho' that the term AtransactionA as used thereof is not limited in its scope or meaning to a commercial or !usiness transaction !ut includes all(inds of transaction, 'hether commercial, civil or administrative in nature, pending 'ith the government. This must !e so, other'ise, the Act 'ould have so stated in the KDefinition of TermsK, ;ection * thereof. :ut it did not, perforce leaving no other interpretation than that the e5pressed purpose and o!7ect is to em!race all (inds of transaction !et'een the government and other part& 'herein the pu!lic officer 'ould intervene under the la'. "%omment, p. 3.$It is o!vious that the investigation conducted !& the petitioner 'as not a contract. >either 'as it a transaction!ecause this term must !e construed as analogous to the term 'hich precedes it. A transaction, li(e a contract, is one 'hich involves some consideration as in credit transactionsand this element "consideration$ is a!sent in the investigation conducted !& the petitioner.In the light of the foregoing, De agree 'ith the petitioner that it 'as error for the ;andigan!a&an to have convicted him of violating ;ec. + "!$ of R.A.>o. +2/0.The petitioner also claims that he cannot !e convicted of !ri!er& under the Revised Penal %ode !ecause to do so 'ould !e violative of as constitutional right to !e informed of the nature and cause of the accusation against him. Drong. A reading of the information 'hich has !een reproduced herein clearl& ma(es out a case of !ri!er& so that the petitioner cannot claim deprivation of the right to !e informed.I> T8E B, the 7udgment of the ;andigan!a&anis modified in that the petitioner is deemed guilt& of !ri!er& as defined and penali9ed !& Article */2 of the Revised Penal %ode and is here!& sentenced to suffer an indeterminate penalt& of si5 ",$ months of arresto mayor, as minimum, to t'o "*$ &ears ofprision correccional as ma5imum, and to pa& a fine of T'o Thousand "P*,222.22$ Pesos. The rest of the 7udgment is here!& affirmed. %osts against the petitioner.;O ORDERED.Fernando, *J, Tee$an)ee, Ma)asiar, A/uino, *oncepcion, Jr, %uerrero, Melencio.1errera, &lana, 2scolin, Relova, %utierrez, Jr, 0e la Fuente and *uevas, JJ, concur GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG.R. No. 1"7333 (u4us- 12, 2$$"ROS(LI(5 . *!G(+ON, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.D E % I ; I O >6!IS!)ING, J.7Petitioner Rosalia Duga&on see(s the revie' of the *e%,s,o// dated >ovem!er *-, *222 of the ;andigan!a&an in %riminal %ase >o. *2+--, convicting her and her co-accused, 4essie* %allangan, of violating ;ection +"e$ of Repu!lic Act >o. +2/0, the Anti-Braft and %orrupt Practices Act.The follo'ing facts, as summari9ed !& the ;andigan!a&an, are undisputed)+;ometime in 4ul& /030, the Department of ;ocial Delfare and Development "D;DD$, Region *, Tuguegarao, %aga&an, em!ar(ed on a P*+0,-,2- pro7ect involving the procurement of /0 t&pe'riters. A Procurement :oard 'as formed, composed of Assistant Regional Director Rosalia Duga&on as %hairman, ;uppl& Officer Rogelio 8ipolito and %arlito %ata!a& as authori9ed canvasser.The :oard prepared the Re@uisition for E@uipment and ;upplies "RE;$ for the /0 t&pe'riters indicating their specifications. The RE; 'as su!mitted toRegional Director %onsolacion Arafiles for signature and approval. =pon approval of the RE;, petitioner Duga&on released letters of canvass "similar to an invitation to !id$ addressed to dealers in Tuguegarao and anila. From four proposals, ;an ;e!astian ar(eting, represented !& 4essie %allangan, 'on the !id. Dhen ;tate Auditor 4ud& ;ingson, resident auditor of D;DD, Region *, Tuguegarao, %aga&an, learned a!out the opening of the !ids, she sent a letter dated 4ul& */, /030 to Regional Director %onsolacion Arafiles a!out the deficiencies in the !idding. In her letter, Auditor ;ingson o!served that the AuditorAs Office 'as not informed of the opening of the !ids, in violation of ;ection +0/# of the Bovernment Accounting and Auditing anual1 that the Auditor 'as not furnished 'ith copies of !id invitations at least t'o 'ee(s ahead of the opening date1 that !idderAs !onds 'ere not imposed1 and that the !idders 'ere not re@uired tosu!mit or present their o. +2/0, as amended, and are here!& sentenced to suffer each an indeterminate prison term of ;i5 ",$ &ears and One "/$ da&, as minimum, to >ine "0$ &ears and One "/$ da&, as ma5imum1 to indemnif& the government 7ointl& and severall&, in the amount of >inet&-;even Thousand ;i5 8undred and >inet& Pesos "P0.,,02.22$, 'ith costs1 and accused Duga&on to further suffer perpetual dis@ualification from pu!lic office.On the other hand, in vie' of the a!ove findings, accused %O>;O D. ARAFIo. -/0+22/ dated 4ul& /3, /00-, in the amount of P/#,222.22 covering her cash !ond, upon proper receipt therefor, su!7ect to the usual auditing and accounting procedures.As far as accused ROBE$ BRAFE 8OB A>D DE%B O> T8E E?I;TE>%E OF A %O>;PIRA%E AO>B PETITIO>ER-APPEORA:DIBA>:AEA> "FIFT8 DIFI;IO>$ I> %O>FI%TI>B PETITIO>ER-APPE;E %8ARBED FAI%E ADD=%ED :E T8E PRO;E%=TIO> ARE >OT ;=FFI%IE>T A>D ADEC=ATE TO E;TA:A:o. +2/0"Anti-Braft and %orrupt Practices Act$ is pertinent. It provides,;E%. +. *orrupt practices of pu'lic officers. - In addition to acts or omissions of pu!lic officers alread& penali9ed !& e5isting la', the follo'ing shall constitute corrupt practices of an& pu!lic officer and are here!& declared to !e unla'ful). . ."e$ %ausing an& undue in7ur& to an& part&, including the Bovernment, or giving an& private part& an& un'arranted !enefits, advantage or preference in the discharge of his official, administrative or 7udicial functions through manifest partialit&, evident !ad faith or gross ine5cusa!le negligence. This provisionshall appl& to officers and emplo&ees of offices or government corporations charged 'ith the grant of licenses or permits or other concessions.The essential elements of this crime are) "/$ the accused are pu!lic officersor private persons charged in conspirac& 'ith them1 "*$ said pu!lic officers commit the prohi!ited acts during the performance of their official duties or in relation to their pu!lic position1 "+$ the& caused undue in7ur& to an& part&,'hether the government or a private part&1 "-$ such in7ur& is caused !& giving un'arranted !enefits, advantage or preference to such parties1 and "#$ the pu!lic officers have acted 'ith manifest partialit&, evident !ad faith or gross ine5cusa!le negligence.**Recall that at the time of purchase of the t&pe'riters, the petitioner 'as then the Assistant Regional Director of D;DD Region *, Tuguegarao, %aga&an. ;he 'as %hairman of the Procurement :oard and mem!erIsignator& of the Inspection and Acceptance %ommittee. ;he accepted the secondhand t&pe'riters, contrar& to the re@uirement to !u& !rand ne' units, and allo'ed pa&ment for them at the price of !rand ne' units. ;he admitted that the specification for the t&pe'riters should !e !rand ne'.*+ The ;andigan!a&an found the t&pe'riters that 'ere paid for 'ere secondhand, re!uilt and reconditioned. These findings of fact are !inding on us.*- De find no reason to re7ect these findings as these 'ere !ased on the Inspection Report of the %OA.Dithout hesitation 'e find that this transaction defrauded and caused in7ur&to the government. The ;andigan!a&an reported that !ased on the Prices %omparison of Agenc& Purchase Price Against Re-canvassed Prices on Re-conditioned Items, the government paid P*+0,-02 for the deliveries or P0.,,02 more than the actual cost of P/-/,322 of the re!uiltIreconditioned t&pe'riters, giving un'arranted !enefits to ;an ;e!astian ar(eting and 4essie %allangan. The amount of P0.,,02 represents the actual damage suffered !& the government in this anomalous transaction.In our vie', petitioner not onl& failed in her dut& as %hairman of the Procurement :oard and mem!erIsignator& of the Inspection and Acceptance %ommittee, she also clearl& acted 'ith evident !ad faith. :ad faith does not simpl& connote !ad 7udgment or negligence. It imputes a dishonest purpose or some moral o!li@uit& and conscious 'rongdoing. It parta(es the nature of fraud. It contemplates a state of mind affirmativel& operating 'ith furtive design or 'ith some motive, self-interest or ill 'ill, or for ulterior purposes.*# Feril&, petitioner must ans'er for her acts and omissions.8HEREFORE, the petition is *ISISSE*. The assailed Decision dated >ovem!er *-, *222 of the ;andigan!a&an is here!& (FFIRE*.SO OR*ERE*.0avide, Jr, *J, 3*$airman4, +nares.Santiago, *arpio, and Azcuna, JJ, concur. GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG.R. No. 1#$363 (9r,3 2#, 2$$9E*G(R +. TE:ES, Petitioner, vs.THE 1OISSION ON ELE1TIONS a/0 HERINIO G. TE:ES, Respondents.D E % I ; I O >+N(RES-S(NTI(GO, J.:The issue for resolution is 'hether the crime of 'hich petitioner Edgar E. Teves 'as convicted in Teves v. ;andigan!a&an/ involved moral turpitude.The facts of the case are undisputed.Petitioner 'as a candidate for the position of Representative of the +rd legislative district of >egros Oriental during the a& /-, *22. elections. Onarch +2, *22., respondent 8erminio B. Teves filed a petition to dis@ualif&*petitioner on the ground that in Teves v. ;andigan!a&an,+ he 'asconvicted of violating ;ection +"h$, Repu!lic Act "R.A.$ >o. +2/0, or the Anti-Braft and %orrupt Practices Act, for possessing pecuniar& or financial interest in a coc(pit, 'hich is prohi!ited under ;ection 30"*$ of the IED for having !een rendered moot and academic.;O ORDERED.,8ence, the instant petition !ased on the follo'ing grounds)I.T8ERE DA; A:=;E OF DI;%RETIO>, AO=>TI>B TO , D8E> T8E %OE :A>% DE=RRED I> RE;OB T8E AI> I;;=E RAI;ED I> PETITIO>ERP; OTIO> FOR RE%O>;IDERATIO>, D8ET8ER PETITIO>ER I; DI;C=A FOR P=:B I>TO %O>;IDERATIO> T8E DE%I;IO> OF T8E ;=PREE %O=RT I> B.R. >O. /#-/3*.II.T8E AI> I;;=E I; >OT RE>DERED OOT A>D A%ADEI% A; T8E RE;O T8EREOF DIE PETITIO>ERP; C=A TO R=> FOR OT8ER P=:; I> F=T=REE;.III.T8ERE DA; A:=;E OF DI;%RETIO>, AO=>TI>B TO , D8E> T8E %OE :A>% I> EFFE%T AFFIRED T8E FI>DI>B; OF T8E FIR;T DIFI;IO> D8I%8 R=ERP; %O>FI%TIO> FOR FIO OF ;E%TIO> +"8$ OF R.A. +2/0 A>D T8E IPO;ITIO> OF FI>E I; A %O>FI%TIO> FOR A %RIE I>FOB ORA< T=RPIT=DE.A.T8E I;;=E OF D8ET8ER PETITIO>ER DA; %O>FI%TED OF A %RIEI>FOB ORA< T=RPIT=DE ;8O=TO %O>;IDERATIO> T8E FI>DI>B; OF T8E ;=PREE %O=RT I> B.R. >O. /#-/3*.:.T8ERE I; >OT8I>B I> T8E DE%I;IO> OF T8E ;=PREE %O=RT T8AT ;=PPORT; T8E FI>DI>B; OF T8E FIR;T DIFI;IO> OF T8E %OE T8E KTOTAE, PETITIO>ER DA; %O>FI%TED OF A %RIE I>FOB ORA< T=RPIT=DE..The petition is impressed 'ith merit.The fact that petitioner lost in the congressional race in the a& /-, *22. elections did not effectivel& moot the issue of 'hether he 'as dis@ualified from running for pu!lic office on the ground that the crime he 'as convicted of involved moral turpitude. It is still a 7usticia!le issue 'hich the %OEegros Oriental, o'ned the coc(pit in @uestion. In his s'orn application for registration of coc(pit filed on *, ;eptem!er /03+ 'ith the Philippine Bamefo'l %ommission, %u!ao, Cue9on %it&, as 'ell as in his rene'al application dated , 4anuar& /030 hestated that he is the o'ner and manager of the said coc(pit. A!sent an& evidence that he divested himself of his o'nership over the coc(pit, his o'nership thereof is rightl& to !e presumed !ecause a thing once proved to e5ist continues as long as is usual 'ith things of that nature. 8is affidavitdated *. ;eptem!er /002 declaring that effective 4anuar& /002 he Kturnedover the management of the coc(pit to rs. Teresita L. Teves for the reason that MheN could no longer devote a full time as manager of the said entit& due to other 'or( pressureK is not sufficient proof that he divested himself of his o'nership over the coc(pit. Onl& the management of the coc(pit 'as transferred to Teresita Teves effective 4anuar& /002. :eing theo'ner of the coc(pit, his interest over it 'as direct.Even if the o'nership of petitioner Edgar Teves over the coc(pit 'ere transferred to his 'ife, still he 'ould have a direct interest thereon !ecause, as correctl& held !& respondent ;andigan!a&an, the& remained married to each other from /03+ up to /00*, and as such their propert& relation can !e presumed to !e that of con7ugal partnership of gains in the a!sence of evidence to the contrar&. Article /,2 of the %ivil %ode provides that all propert& of the marriage is presumed to !elong to the con7ugal partnership unless it !e proved that it pertains e5clusivel& to the hus!and or to the 'ife. And ;ection /-+ of the %ivil %ode declares all the propert& ofthe con7ugal partnership of gains to !e o'ned in common !& the hus!and and 'ife. 8ence, his interest in the Falencia %oc(pit is direct and is, therefore, prohi!ited under ;ection 30"*$ of the BO %A;TIot satisfied 'ith 'hat he had done, the appellant put the vehicle in reverse there!& running over the victim a second time. The appellant then alighted from the vehicle and 'al(ed to'ards their house. 9At the precise moment of the perpetration of the crime, another 'itness, Arthur Agaran 'ho 'or(ed at the recapping shop of the victim 'as in the latterAs residence. 1$ 8e 'as changing his clothes and preparing to 'or( overtime in the recapping shop located in the premises of the victimAs residence. 11 Agaran sa' the pic(-up truc( !eing driven !& the appellant and noticed that it moved for'ard and !ac('ard four "-$ times 12 a!out t'ent& "*2$ to thirt& "+2$ meters from the house. 13 Dhen he and another 'or(er 'ent outside to find out'hat had happened, the& sa' the victimAs !od& !loodied and spra'led on the ground. 1" The& rushed the victim to the Dolorosa 8ospital at >or9agara&, :ulacan 'here the victim e5pired shortl& thereafter. 15The appellant 'as not immediatel& prosecuted for the death of his father 'hich he 'as a!le to pass off as an accident. :ut 'hen his older sister, %T=RE, T8E DIT>E;; I; I>DI%ATI>B T8E ;AE.C) After that pic( up "sic$ stopped, 'hat happened ne5tJA) It stopped there, sir.C) 8o' a!out &ou, 'hat did &ou do 'hen the pic( up stoppedJA) De 'ere loo(ing at it. De did not mind it.C) After that, did &ou notice an&thing unusual that happened around the premises.A) Ees, sir.C) Tell us a!out that unusual incidentJA) An old man alighted, sir.C) From 'here did that old man alightJA) From the pic( up "sic$, sir.%O=RT)C) The !lue pic( up "sic$JA) Ees, &our honor.FI;%AD PE;O; "P#2,222.22$ !& 'a& of moral damages.D8EREFORE, the assailed decision finding the appellant guilt& !e&ond reasona!le dou!t of the crime of parricide is here!& AFFIRED 'ith the modification that he is sentenced to suffer the penalt& of reclusion perpetua and to pa& the other heirs of the victim the amount FIFTE T8O=;A>D PE;O; "P#2,222.22$ as moral damages.;O ORDERED.,arvasa, *J, 0avide, Jr, Melo and &agani'an, JJ, concur GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG.R. No. 1373"7 ar%& ", 2$$"PEOPLE OF THE PHILIPPINES, appellee, vs.PO3 FER*IN(N* F(LLORIN( + FERN(N*O, appellant.D E % I ; I O >1(LLE2O, SR., J.7For automatic revie' is the Decision/ of the Regional Trial %ourt of Cue9on%it&, :ranch 0#, convicting appellant PO+ Ferdinand Fallorina & Fernando of murder for the (illing of eleven-&ear-old Fincent 4oro7oro, 4r. 'hile the latter 'as fl&ing his (ite on top of a roof. The court a @uo sentenced the appellant to suffer the death penalt&.The accusator& portion of the Information charging the appellant 'ith murder reads)That on or a!out the *,th da& of ;eptem!er /003, in Cue9on %it&, Philippines, the said accused, 'ith intent to (ill, !& means oftreacher& and ta(ing advantage of superior strength, did then and there, 'ilfull&, unla'full& and feloniousl& attac(, assault and emplo& personal violence upon the person of FI>%E>T 4ORO4ORO, 4R. & ORADA;, a minor, eleven "//$ &ears of age, !& then and there, shooting him 'ith a gun, hitting him on the head, there!& inflicting upon him serious and mortal 'ound 'hich 'as the direct and immediate cause of his death, to the damage and pre7udice of the heirs of the said offended part&.%O>TRARE TO OT BIFI>B D=E %REDE>%E TO RET P8E;I%A< EFIDE>%E, D8I%8 IF %O>;IDERED %O=D T8E O=T%OE OF T8E %A;E.*. T8E %O=RT A QUO ;ERIO=;B T8E E OF 4=DBI>B A>D ADFO%A%E, A>D BOI>B I>TO T8E REA< OF ;PE%=, PATE>T;TRATI>B :IA; A>D PARTIA BIFI>B =>D=E %REDE>%E TO T8E TE;TIO>E OF RI%ARDO ;AE I; DA>TI>B I> PRO:A:ITRARE TO T8E %OO> E?PERIE>%E OF A>QI>D.-. T8E %O=RT A QUO BRAFE I>EC=ITA:B E?%=D I>%=D %IR%=;TA>%E; D8I%8 ;8O= %O>;IDERED I> FAFOR OF T8E A%%=;ED.#. T8E %O=RT A QUO ERRED I> FAIB TO APPRE%IATE T8E ITIBATI>B %IR%=;TA>%E OF FOTARE ;=RRE>DER I> FAFOR OF T8E A%%=;ED.,. T8E %O=RT A QUO BRAFE APPRE%IATI>B T8E ABBRAFATI>B %IR%=;TA>%E OF TAQI>B ADFA>TABE OF 8I; PO;ITIO> :E A%%=;ED.*0The appellant asserts that the trial court failed to appreciate in his favor theph&sical evidence, vi9., the hole found on the rooftop of the carinderia 'here Fincent 'as 'hen he 'as shot. The appellant contends that the picture+2ta(en on Octo!er *, /003 !& no less than ;PO* Feli5 Pa7arillo, one of the principal 'itnesses of the prosecution, and the pictures+/ sho'ing :aranga& Tanod Ea(et pointing to a hole on the roof !uttress the defense of the appellant that the shooting 'as accidental. The appellant maintains that his service revolver fell to the ground, hit a hard o!7ect, and as the !arrel of the gun 'as pointed to an o!li@ue direction, it fired, hitting the victim 'ho 'as on the rooftop. The !ullet hit the !ac( portion of the victimAs head, !efore e5iting and hitting the rooftop. The appellant posits that the pictures !elie RicardoAs testimon& that he deli!eratel& shot the victim, and, instead, complements Dr. :alu&otAs testimon& that the gunshot 'ound came from some'here !ehind the victim, some'here lo'er than the point of entrance. The appellant invo(es PIInsp. ario PradoAs testimon& that if a gun hits the ground in an o!li@ue position, the gun 'ill fire and the !ullet 'ill e5it in the same position as the gun, that is, also in an o!li@ue position.The Office of the ;olicitor Beneral, for its part, asserts that the contention of the appellant is !ased on speculations and surmises, the factual !asis for his conclusion not having !een proven !& competent and credi!le evidence. There is no evidence on record that the hole sho'n in the pictures+* 'as caused !& a !ullet from a .-# cali!er pistol. The appellant did not present :aranga& Tanod 4ohnn& Ea(et, 'ho 'as sho'n in the pictures, to testif& on the matter. The appellant failed to prove that an& slug 'as found on the rooftop or under the roof 'hich came from the appellantAs.-# cali!er pistol. According to the ;olicitor Beneral, the pictures relied upon !& the appellant cannot overcome the positive and straightfor'ard testimon& of the &oung e&e'itness Ricardo ;alvo.De agree 'ith the Office of the ;olicitor Beneral. Dhether or not the appellant is e5empt from criminal lia!ilit& is a factual issue. The appellant 'as !urdened to prove, 'ith clear and convincing evidence, his affirmative defense that the victimAs death 'as caused !& his gun accidentall& going off, the !ullet hitting the victim 'ithout his fault or intention of causing it1 hence, is e5empt from criminal lia!ilit& under Article /*, paragraph - of the Revised Penal %ode 'hich reads OThe follo'ing are e5empt from criminal lia!ilit&)R-. An& person 'ho, 'hile performing a la'ful act 'ith due care, causes an in7ur& !& mere accident 'ithout fault or intention of causing it.The !asis for the e5emption is the complete a!sence of intent and negligence on the part of the accused. For the accused to !e guilt& of a felon&, it must !e committed either 'ith criminal intent or 'ith fault or negligence.++The elements of this e5empting circumstance are "/$ a person is performing a la'ful act1 "*$ 'ith due care1 "+$ he causes an in7ur& to another !& mere accident1 and "-$ 'ithout an& fault or intention of causing it.+- An accident is an occurrence that Khappens outside the s'a& of our 'ill, and although it comes a!out through some act of our 'ill, lies !e&ond the !ounds of humanl& foreseea!le conse@uences.K If the conse@uences are plainl& foreseea!le, it 'ill !e a case of negligence.In Jarco Mar)eting *orporation v *ourt of Appeals,+# this %ourt held that an accident is a fortuitive circumstance, event or happening1 an event happening 'ithout an& human agenc&, or if happening 'holl& or partl& through human agenc&, an event 'hich under the circumstance is unusual or une5pected !& the person to 'hom it happens. >egligence, on the otherhand, is the failure to o!serve, for the protection of the interest of another person, that degree of care, precaution and vigilance 'hich the circumstances 7ustl& demand 'ithout 'hich such other person suffers in7ur&. Accident and negligence are intrinsicall& contradictor&1 one cannot e5ist 'ith the other.+, In criminal negligence, the in7ur& caused to another should !e unintentional, it !eing simpl& the incident of another act performed 'ithout malice.+. The appellant must rel& on the strength of his evidence and not on the 'ea(ness of that of the prosecution !ecause !& admitting having caused the death of the victim, he can no longer !e ac@uitted.In this case, the appellant failed to prove, 'ith clear and convincing evidence, his defense.First. The appellant appended to his counter-affidavit in the Office of the Cue9on %it& Prosecutor the pictures sho'ing the hole on the roof of the carinderiao sir, !ecause I alread& !rought the child to the hospital.--The conduct of the appellant after the shooting !elies his claim that the death of the victim 'as accidental and that he 'as not negligent.De agree 'ith the encompassing dis@uisitions of the trial court in its decision on this matter)The coup de grace against the claim of the accused, a policeman, that the victim 'as accidentall& shot 'as his failure tosurrender himself and his gun immediatel& after the incident. As a police officer, it is hard to !elieve that he 'ould choose to flee and (eep himself out of sight for a!out three "+$ da&s if he indeed 'as not at fault. It is !e&ond human comprehension that a policeman, 'ho professes innocence 'ould come out into the open onl& three "+$ da&s from the incident and claim that the victim 'as accidentall& shot. 8uman !ehavior dictates, especiall& 'hen the accused is a policeman, that 'hen one is innocent of some acts or 'hen one is in the performance of a la'ful act !ut causes in7ur& to another 'ithout fault or negligence, he 'ould, at the first moment, surrender to the authorities and give an account of the accident. 8is failure to do so 'ould invite suspicion and 'hatever account or statement he 'ould give later on !ecomes dou!tful.For t$e accused, t$erefore, to claim t$at "incent 6as accidentally s$ot is odious, if not, an insult to $uman intelligence>it is incredi'le and un'elieva'le, and more of a fantasy t$an a reality 7t 6as a deli'erate and intentional act, contrary to accused;s claim, t$at it $appened outside t$e s6ay of $is 6ill.-#It is a 'ell-entrenched rule that findings of facts of the trial court, its cali!ration of the testimonies of the 'itnesses, its assessment of the credi!ilit& of the said 'itnesses and the pro!ative 'eight of their testimonies are accorded high respect, if not conclusive effect !& the appellate court, as the trial 7udge 'as in a !etter position to o!serve the demeanor and conduct of the 'itnesses as the& testified.-, De have carefull& revie'ed the records of the case and found no reason to deviate from the findings of the trial court.The testimon& of prosecution 'itness Ricardo ;alvo deserves credence. 8e testified in a positive and straightfor'ard manner, 'hich testimon& had the earmar(s of truth and sincerit&. Even as he 'as su!7ected to a grueling cross-e5amination !& the appellantAs counsel, he never 'avered in his testimon&. 8e positivel& identified the appellant as the assailant and narrated in detail ho' the latter deli!eratel& aimed his gun and shot the victim. The relevant portions of his testimon& are @uoted)C) Dhile pla&ing !as(et!all 'ith >ono, o, sir.C) Dh& do &ou (no' that it 'as .-# cal.JA) :ecause that (ind of gun, I usuall& see that in the movies, sir.C) Ricardo, &ou said that &ou have (no'n Fallorina for t'o "*$ &ears and &ou sa' him shot Fincent on ;eptem!er *,, /003 at around *)+2 in the afternoon. Please loo( around the courtroom no' and point at the person of PO+ Ferdinand FallorinaJ%T. I>TERPRETER)Ditness is pointing to a male person the one seated at the !ac( of the lad& and 'earing a &ello' shirt and maong pants and 'hen as(ed of his name, he stated his name as Ferdinand Fallorina.ATTE. PRI>%IPE) "to the 'itness$C) %an &ou tell to the %ourt 'hether &ou heard utterances at that time that he shot the victimJRA) Ees, sir.C) Dhat 'as thatJA) K&utang inang mga 'atang ito, $indi )ayo magsisi'a'a diyanTKRC) After Fallorina shot Fincent 4oro7oro, &ou sa' Fincent 4oro7oro falling from the roof, 'hat a!out Fallorina, 'hat did he doJA) 8e 'as still on !oard his motorc&cle and then he 'ent at the !ac( of the (arinderia 'here Fincent fell, Eour 8onor.C) And after he 'ent at the !ac( of the (arinderia and loo(edat Fincent 4oro7oro, 'hat did he doJA) 8e carried Fincent, Eour 8onor.C) And after carr&ing Fincent, 'hat did he doJA) 8e !oarded Fincent in the tric&cle.C) Dhat a!out the gun, 'hat did he do 'ith the gunJA) I do not (no' an&more.-.The appellant even uttered invectives at the victim and Dhilcon !efore he shot the victim. In fine, his act 'as deli!erate and intentional.It !ears stressing that of the e&e'itnesses listed in the Information as 'itnesses for the prosecution, onl& Ricardo ;alvo remained steadfast after he 'as !rought under the Ditness Protection Program of the Department of 4ustice. 8e e5plained that the reason 'h& he testified for the prosecution, despite the fact that the appellant 'as a policeman, 'as !ecause he pitied the victimAs mother 'ho 'as al'a&s cr&ing,-3 una!le to o!tain 7ustice for her son. De find no ill motive 'h& Ricardo 'ould falsel& testif& against the appellant. It 'as onl& his purest intention of ferreting out the truth in this incident and that 7ustice !e done to the victim.-0 8ence, the testimon& of Ricardo is entitled to full faith and credence.T&e 1r,1(RPIO, J.:T&e 1aseThis petition for certiorari/ assails the Resolutions dated /# ;eptem!er *222 and /0 April *22/ of the ;ecretar& of the Department of 4ustice "KDO4 ;ecretar&K$ in I.%. >o. 00-,*#-.* The DO4 ;ecretar&+ denied o. .,/2 "KRA .,/2K$# and for violation of the same provision of RA .,/2. The DO4 ;ecretar&, also denied petitionerPs motion for reconsideration.T&e Fa%-sThe present case arose from a s'orn statement of respondent agdalena :. Dacarra "KagdalenaK$ e5ecuted !efore the DomenPs Des( of the %PD Police ;tation in :atasan 8ills, Cue9on %it& on /2 Decem!er /000. agdalena stated that on - Decem!er /000, her nine-&ear-old son Ronald complained of di99iness upon arriving home at a!out si5 in the evening. Ronald then vomited, prompting agdalena to as( 'hat happened. Ronaldreplied that petitioner, 'ho 'as RonaldPs teacher, !anged his head against that of his classmate os. 0,-/03# and 0,-/03,, convicting accused-appellant Romeo 4alos7os of t'o "*$ counts of statutor& rape, and in %riminal %ase >os. 0,-/03., 0,-/033, 0,-/030, 0,-/002, 0,-/00*, and 0,-/00+, for si5 ",$ counts of acts of lasciviousness defined and penali9ed under Article ++, of the Revised Penal %ode, in relation to ;ection #"!$ of Repu!lic Act >o. .,/2, also (no'n as the %hild A!use o./.2*, Rit9 To'ers, a(ati %it&, and 'ithin the 7urisdiction of this 8onora!le %ourt, the a!ove-named accused, did then and there 'illfull&, unla'full&and feloniousl& have carnal (no'ledge 'ith "sic$ eleven &ear old minor Rosil&n Delantar against her 'ill, 'ith damage and pre7udice.%O>TRARE TO o. /.2*, Rit9 To'ers, a(ati %it&, and 'ithin the 7urisdiction of this 8onora!le %ourt, the a!ove-named accused, did then and there 'illfull&, unla'full& and feloniousl& havecarnal (no'ledge 'ith "sic$ eleven &ear old minor Rosil&n Delantar against her 'ill, 'ith damage and pre7udice.%O>TRARE TO o. /.2*, Rit9 To'ers, a(ati %it&, etro-anila and 'ithin the 7urisdiction of this 8onora!le %ourt, the a!ove-named accused, 'ith le'd design, did then and there 'ilfull&, unla'full& and feloniousl& (iss, caress and fondle said complainantAs face, lips, nec(, !reasts, 'hole !od&, and vagina, suc( her nipples and insert his finger and then his tongue into her vagina, place himself on top of her, then insert his penis in !et'een her thighs until e7aculation, and othersimilar lascivious conduct against her 'ill, to her damage and pre7udice.%O>TRARE TO os. 0,-/0331 0,-/0021 and 0,-/00+, there 'ere added averments that on the different dates, the accused gave the complainant P/2,222.22, P#,222.22 and P#,222.22 respectivel&.=pon arraignment on 4anuar& *0, /00., accused-appellant refused to enter a plea. 8ence, the trial court entered a plea of not guilt& for him. At the trial, the prosecution presented eight "3$ main 'itnesses and seven ".$ re!uttal 'itnesses as 'ell as documentar& evidences mar(ed as E5hi!its Ato EEEE, inclusive of su!mar(ings. The defense, on the other hand presented t'ent&-si5 "*,$ 'itnesses. Its documentar& evidence consists of E5hi!its / to /#+, inclusive of su!mar(ings. The records of the case are e5tremel& voluminous.The PeoplePs version of the facts, culled mainl& from the testimon& of the victim, are as follo's)aria Rosil&n Delantar 'as a slim, eleven-&ear old lass 'ith long, straight !lac( hair and almond-shaped !lac( e&es. ;he gre' up in a t'o-store& apartment in Pasa& %it& under the care of ;implicio Delantar, 'hom she treated as her o'n father. ;implicio 'as a fift&-si5 &ear old homose5ual 'hose ostensi!le source of income 'as sellinglongganiza and tocino and accepting !oarders at his house. On the side, he 'as also engaged in the s(in trade as a pimp.Rosil&n never got to see her mother, though she had (no'n a &ounger !rother, ;handro, 'ho 'as also under the care of ;implicio. At a ver& &oung age of #, fair and smooth-comple5ioned Rosil&n 'as e5posed !& ;implicio to his illicit activities. ;he and her !rother 'ould tag along 'ith ;implicio 'henever he delivered prostitutes to his clients. Dhen she turned0, Rosil&n 'as offered !& ;implicio as a prostitute to an Ara!ian national (no'n as r. 8ammond. Thus !egun her ordeal as one of the girls sold !& ;implicio for se5ual favors.Rosil&n first met accused-appellant, Romeo 4alos7os, sometime in Fe!ruar& /00, at his office located near Ro!insonPs Balleria. Rosil&n and ;implicio 'ere !rought there and introduced !& a talent manager !& the name of Eduardo ;uare9. Accused-appellant promised to help Rosil&n !ecome an actress. Dhen he sa' Rosil&n, accused-appellant as(ed ho' old she 'as. ;implicio ans'ered, K/2. ;he is going to !e // on a& //.K Accused-appellant in@uired if Rosil&n (no's ho' to sing. ;implicio told Rosil&n to sing, so she sang the song, KTell e Eou ational :ureau of Investigation ">:I$ conducted an investigation, 'hich eventuall& led to the filing of criminal charges against accused-appellant.On August *+, /00,, Rosil&n 'as e5amined !& Dr. Emmanuel os. 0,-/03., 0,-/033, 0,-/030, 0,-/002, 0,-/00* and 0,-/00+, the prosecution has proven !e&ond reasona!le dou!t the guilt of the accused, ROEO 4Aos. 0,-/00/, 0,-/00-, 0,-/00#, 0,-/00,, 0,-/00. and 0,-/003, the prosecution has failed to prove !e&ond reasona!le dou!t the guilt of the accused, ROEO 4Ao. ., pp. +***-+**+, the follo'ing 'as @uoted 'ith approval !& the %ourt of Appeals from / oore on Facts, p. *+)K/3. Testimony may 'e partly credited and partly re9ected. --- Trier of facts are not !ound to !elieve all that an& 'itness has said1 the& ma& accept some portions of his testimon& and re7ect other portions, according to 'hat seems to them, upon other facts and circumstances to !e the truthR Even 'hen 'itnesses are found to have deli!eratel& falsified in some material particulars, the 7ur& are not re@uired to re7ect the 'hole of their uncorro!orated testimon&, !ut ma& credit such portions as the& deem 'orth& of !elief.K "p. 0-#$/3:eing in the !est position to discriminate !et'een the truth and the falsehood, the trial courtAs assignment of values and 'eight on the testimon& of Rosil&n should !e given credence. ;ignificantl&, it should !e !orne in mind that the issue at hand hinges on credi!ilit&, the assessment of 'hich, as oft-repeated, is !est made !& the trial court !ecause of its untrammeled opportunit& to o!serve her demeanor on the 'itness stand.On the demeanor and manner of testif&ing sho'n !& the complainant, the trial court stated)Buided !& the foregoing principles, this court found no reason 'h& it should not !elieve Rosil&n 'hen she claimed she 'as raped. Testimonies of rape victims especiall& those 'ho are &oung and immature deserve full credence "&eople v Ci/uiran, **3 ;%RA ,* "/00+$ considering that Kno 'oman 'ould concoct a stor& of defloration, allo' an e5amination of her private parts and thereafter allo' herself to !e perverted in a pu!lic trial if she 'as not motivated solel& !& the desire to have the culprit apprehended and punished.K "&eople v -uyo), *+# ;%RA ,** M/00,N$.Dhen as(ed to descri!e 'hat had !een done to her, Rosil&n 'asa!le to narrate spontaneousl& in detail ho' she 'as se5uall& a!used. 8er testimon& in this regard 'as firm, candid, clear and straightfor'ard, and it remained to !e so even during the intenseand rigid cross-e5amination made !& the defense counsel./0Accused-appellant ne5t argues that Rosil&nPs direct and redirect testimonies 'ere rehearsed and lac(ing in candidness. 8e points to the supposed hesitant and even idiotic ans'ers of Rosil&n on cross and re-cross e5aminations. 8e added that she 'as trained to give ans'ers such as, KAno poJK, K&arang po,K KMedyo po,K and KSa tingin )o po.KAccused-appellantPs arguments are far from persuasive. A reading of the pertinent transcript of stenographic notes reveals that Rosil&n 'as in fact firm and consistent on the fact of rape and lascivious conduct committed on her !& accused-appellant. ;he ans'ered in clear, simple and natural 'ords customar& of children of her age. The a!ove phrases @uoted !& accused-appellant as uttered !& Rosil&n are, as correctl& pointed out !& the ;olicitor Beneral, t&pical ans'ers of child 'itnesses li(e her.At an& rate, even assuming that Rosil&n, during her length& ordeals on the 'itness stand, ma& have given some am!iguous ans'ers, the& refer merel& to minor and peripheral details 'hich do not in an& 'a& detract fromher firm and straightfor'ard declaration that she had !een molested and su!7ected to lascivious conduct !& accused-appellant. oreover, it should !e !orne in mind that even the most candid 'itness oftentimes ma(es mista(es and confused statements. At times, far from eroding the effectiveness of the evidence, such lapses could, indeed, constitute signs of veracit&.*2Then, too, accused-appellant capitali9es on the alleged a!sence of an& allegation of rape in the five "#$ s'orn statements e5ecuted !& Rosil&n as 'ell as in the intervie's and case stud& conducted !& the representatives of the D;DD. In particular, accused-appellant points to the follo'ing documents)"/$ ;'orn statements dated August ** and *,, /00,, e5ecuted !efore ;PO# ilagros A. %arrasco of the Pasa& %it& Police1"*$ ;'orn statements dated ;eptem!er #, //, and /0, /00,, e5ecuted !efore >:I Agents %&nthia :I Agent Arlis E. Fela1"+$ The Initial Intervie' of Rosil&n !& the D;DD dated August +2, /00,1"-$ D;DD Final %ase ;tud& Report dated 4anuar& /2, /00..It must !e stressed that KrapeK is a technical term, the precise and accuratedefinition of 'hich could not have !een understood !& Rosil&n. Indeed, 'ithout the assistance of a la'&er, 'ho could e5plain to her the intricacies of rape, she e5pectedl& could not distinguish in her affidavits and conse@uentl& disclose 'ith proficient e5actitude the act or acts of accused-appellant that under the contemplation of la' constitute the crime of rape. This is especiall& true in the present case 'here there 'as no e5haustive and clear-cut evidence of full and complete penetration of the victimPs vagina. It ma& 'ell !e that Rosil&n thought, as an& la&man 'ould pro!a!l& do, that there must !e the fullest penetration of the victimPs vagina to @ualif& a se5ual act to rape.In &eople v *ampu$an,*/ 'e ruled that rape is consummated K!& the slightest penetration of the female organ,ie, touching of either la!ia of the pudendum !& the penis.K There need not !e full and complete penetration of the victimPs vagina for rape to !e consummated. There !eing no sho'ingthat the foregoing technicalities of rape 'as full& e5plained to Rosil&n on allthose occasions that she 'as intervie'ed !& the police, the >:I agents and D;DD social 'or(ers, she could not therefore !e e5pected to intelligi!l& declare that accused-appellantPs act of pressing his se5 organ against her la!ia 'ithout full entr& of the vaginal canal amounted to rape.In the decision of the trial court, the testimon& on one of the rapes is cited plus the courtPs mention of the 7urisprudence on this issue, to 'it)C) Eou said that 'hen %ongressman 4alos7os inserted his finger into &our vagina, &our !ac( 'as rested on a pillo' and &our legs 'ere spread 'ide apart, 'hat else did he doJA) 8e lifted his shirt, and held his penis1 and again Kidini)it.di)it niya ang ari niya sa ari )o.K "7talics supplied$C) And, after doing that) KIdini(it-di(it ni&a &ong ari ni&a sa ari(oK1 'hat else did he doJA) After that, 87tinuto) niya po yong ari niya at idiniin.diin niyaang ari niya sa ari )o.K "underscoring supplied$"pp. *+, *# to +2, T;>, /, April /00.$It is 'ell-entrenched in this 7urisdiction that rape can !e committed even 'ithout full penetration of the male organ into the vagina of the 'oman. It is enough that there !e proof of the entrance of the male organ 'ithin the la!ia of the pudendum of the female organ. "&eople vs Mangalino, /3* ;%RA +*0> &eople vs Tismo, *2- ;%RA #+#1 &eople vs -acani, /3/ ;%RA+0+$. KPenetration of the penis !& entr& into the lips of the femaleorgan suffices to 'arrant a conviction.K "&eople vs %alim'a, B.R. >o. ///#,+-,-, Fe!ruar& *2, /00, citing &eople vs A'onada, /,0 ;%RA #+2$. 8ence, 'ith the testimon& of Rosil&n that the accused pressed against "KidiniinK$ and pointed to "Kitinuto(K$ Rosil&nPs vagina his se5ual organ on t'o "*$ occasions, t'o "*$ acts of rape 'ere consummated.**oreover, it must !e !orne in mind that Rosil&nPs purpose in e5ecuting the affidavits on August ** and *,, /00, !efore the Pasa& %it& Police 'as to charge ;implicio Delantar, not accused-appellant. As aptl& pointed out !& the trial court, it is preposterous to e5pect Rosil&n to ma(e an e5haustive narration of the se5ual a!use of accused-appellant 'hen he 'as not the o!7ect of the said complaint.Additionall&, Rosil&nPs statements, given to the >:I on ;eptem!er // and /0, /00,, concerned mainl& the identification of pictures. There 'as thus no occasion for her to narrate the details of her se5ual encounter 'ith accused-appellant.As to the intervie's and studies conducted !& the D;DD, suffice it to statethat said meetings 'ith Rosil&n 'ere speciall& focused on the emotional and ps&chological repercussions of the se5ual a!use on Rosil&n, and had nothing to do 'ith the legal actions !eing prepared as a conse@uence thereof. Thus, the documents pertaining to said intervie's and studies cannot !e relied upon to reveal ever& minute aspect of the se5ual molestations complained of.At an& rate, the inconsistencies !et'een the affidavits and Rosil&nPs testimon&, if at all the& e5isted, cannot diminish the pro!ative value of Rosil&nPs declarations on the 'itness stand. The consistent ruling of this %ourt is that, if there is an inconsistenc& !et'een the affidavit of a 'itness and her testimonies given in open court, the latter commands greater 'eight than the former.*+In the third assigned error, accused-appellant attempts to impress upon this %ourt that Rosil&n gave the name %ongressman Romeo 4alos7os as her a!user onl& !ecause that 'as the name given to her !& the person to 'hom she 'as introduced. That same name, accused-appellant claims, 'as merel& pic(ed up !& Rosil&n from the name plate, pla@ue, and memo pad she sa' on accused-appellantPs office des(. Accused-appellant presented his !rother, Dominador K4unK 4alos7os, in an attempt to cast dou!t on his culpa!ilit&. It 'as Dominador K4unK 4alos7os 'ho allegedl& metand intervie'ed Rosil&n at the Da(a( office. In advancement of this theor&, accused-appellant cites the fact that out of a total of /, pictures presented to Rosil&n for identification, she pic(ed up onl& -, 'hich depict Dominador K4unK 4alos7os. In the same vein, accused-appellant claims that the resulting cartographic s(etch from the facial characteristics given !& Rosil&n to the cartographer, resem!les the facial appearance of DominadorK4unK 4alos7os. Accused-appellant also points out that Rosil&n failed to givehis correct age or state that he has a mole on his lo'er right 7a'.%ontrar& to the contentions of accused-appellant, the records reveal that Rosil&n positivel& and unhesitatingl& identified accused-appellant at the courtroom. ;uch identification during the trial cannot !e diminished !& the fact that in her s'orn statement, Rosil&n referred to accused-appellant as her a!user !ased on the name she heard from the person to 'hom she 'as introduced and on the name she sa' and read in accused-appellantPs office. Feril&, a personPs identit& does not depend solel& on his name, !ut also on his ph&sical features. Thus, a victim of a crime can still identif& the culprit even 'ithout (no'ing his name. ;imilarl&, the %ourt, in &eople v "as/uez,*-ruled that)It matters little that the e&e'itness initiall& recogni9ed accused-appellant onl& !& faceR Mthe 'itnessN R acted li(e an& ordinar& person in ma(ing in@uiries to find out the name that matched MappellantPsN face. ;ignificantl&, in open court, he une@uivocall& identified accused-appellant as their assailant.Even in the case of &eople v Timon,*# relied upon !& accused-appellant to discredit his identification, this %ourt said that even assuming that the out-of-court identification of accused-appellant 'as defective, their su!se@uentidentification in court cured an& fla' that ma& have initiall& attended it.In light of the foregoing, Rosil&nPs failure to identif& accused-appellant out of the /, pictures sho'n to her does not foreclose the credi!ilit& of her un@ualified identification of accused-appellant in open court. The same holds true 'ith the su!7ect cartographic s(etch 'hich, incidentall&, resem!les accused-appellant. As noted !& the trial court, accused-appellant and his !rother Dominador 4alos7os have a stri(ing similarit& in facial features. >aturall&, if the s(etch loo(s li(e Dominador, it logicall& follo's that the same dra'ing 'ould definitel& loo( li(e accused-appellant.O)C. And, after (issing &our lips1 after (issing &ou in &our lips, 'hat else did he doJA. After that, he 'as lifting m& shirt.C. >o', 'hile he 'as lifting &our shirt, 'hat 'as &our position1 'ill &ou tell the courtJA. I 'as l&ing, sir.C. A>DEL)a& 'e re@uest that the vernacular !e usedJA. Tapos po, idini)it.di)it po niya yong ari niya sa ari )o.PRO;. L=>O)a& I respectfull& move that the 'ord) Kidini)it.di)it niya ang ari niya sa ari )o,K !e incorporatedJC. And 'hile he 'as doing that1 according to &ou, Kidini)it.di)it niya ang ari niya sa ari mo1K 'hat did &ou feelJA. I 'as afraid and then, I cried.C. Dill &ou tell the %ourt 'h& &ou felt afraid and 'h& &ou criedJA. :ecause I 'as afraid he might insert his penis into m& vagina.C. And, for ho' long did %ongressman 4alos7os perform that act, 'hich according to &ou, Kidini)it.di)it niya yong ari niya sa ari)oJK%O=RT)Place the Tagalog 'ords, into the records.A. Sandali lang po yon.C. Dhat part of &our vagina, or KariK 'as !eing touched !& the ari or penisJ5 5 5 5 5 5 5 5 5C. Eou said that &ou feltR I 'ithdra' that @uestion. 8o' did &ou (no' that %ongressman 4alos7os 'as doing, Kidini)it.di)it niya yung ari niya sa ari )oJKA. :ecause I could feel it, sir.C. >o', &ou said &ou could feel it. Dhat part of the vaginaR in 'hat part of &our vagina 'as %ongressman 4alos7os, according to &ou, Kidini)it.di)it niya yong ari niya sa ari moJKA. In front of m& vagina, sir.C. In front of &our vaginaJ O.Q.1 'ill &ou tell the %ourt the positionJ Dill &ou descri!e the position of %ongressman 4alos7os'hen he 'as doing that. K7dini)it.di)it niya sa ari )oJKA. 7de.demonstrate )o po 'aJFI;%A< L=>O)C. %an &ou demonstrateJ5 5 5 5 5 5 5 5 5A. 8e 'as holding me li(e this 'ith his one hand1 and 'as holding his penis 'hile his other hand, or his free hand 'as on the !ed.5 5 5 5 5 5 5 5 5PRO;. L=>O)>o', according to &ou, &ou donPt (no' ho' to sa& it1 or 'hat 'as done to &ou. >o', 'ill &ou tell the %ourt ho' can &ou descri!e 'hat 'as done to &ouJA. After he Kdini)it.di)it niya yong ari niya sa ari )o1 itinuto) naman niya ito.KC. O.Q. &ou said Kitinuto) niya ito1K 'hat else did he doJPRO;. L=>O);he is no' tr&ing to descri!e.%O=RT)Translate.A. 8e seems to !e Kparang idinidiin po niya.KC. >o', 'hat did &ou feel, 'hen according to &ou1 as I 'ould@uote) Kparang idinidiin niyaJKA. Masa)it po.C. And, 7ust to ma(e it clear in Tagalog) Ano itong idinidiin niyaJ%O=RT)C. Sa'i mo itinuto). ,a)ita mo 'ang itinuto)JA. I sa' him na na)aganuon po sa ano niya.PRO;. L=>O)C. O.Q., clarif&. Eou said Kna)aganuon siyaK 'hat do &ou mean !& Kna)aganuon siyaJKA. 8e 'as holding his penis, and then, that 'as the one 'hich he itinuto) sa ari )o.PRO;. L=>O)C. And, 'hen &ou said Kidinidiin po niya1K to 'hich &ou are referringJ Dhat is this Kidinidiin niyaJKA. 7dinidiin niya ang ari niya sa ari )o.C. And 'hat did &ou feel 'hen &ou said) he 'as Kidinidiin niya ang ari niya sa ari )oJKA. Masa)it po.%O=RT)The ans'er is Kmasa)it po.KProceed.PRO;. L=>O)C. Dhere did &ou feel the painJA. Inside m& ari po. "Sa loo' po ng ari )o.$5 5 5 5 5 5 5 5 5PRO;. L=>O)C. And then, after that, 'hat else did he doA. After that, he touched m& !reast, sir.C. And, after touching &our !reast, 'hat did he doJA. And after that I felt that he 'as "'itness demonstrating to the court, 'ith her inde5 finger, ru!!ing against her open left palm$C. And after doing that, 'hat else did he doJA. After that, he instructed me to go to sleep.5 5 5 5 5 5 5 5 5A. I put do'n m& clothes and then, I cried m&self to sleep, sir.C. Dh& did &ou cr&J Dill &ou tell the court, 'h& did &ou cried after putting do'n &our clothesJA. :ecause I felt pit& for m&self. ",aaa6a po a)o sa sarili )o.$5 5 5 5 5 5 5 5 5."Emphasis supplied.$*0Even the 4ul& *2, /00, encounter !et'een Rosil&n and accused-appellant 'ould not ta5 the s(etch& visuali9ation of the naUve and uninitiated to conclude that there 'as indeed penile invasion !& accused-appellant of Rosil&nPs la!ia. On that occasion, accused-appellant 'as similarl& ensconced !et'een the parted legs of Rosil&n, e5cept that, this time, Rosil&n 'as convenientl& rested on, and elevated 'ith a pillo' on her !ac('hile accused-appellant 'as touching, po(ing and pressing his penis against her vagina. Topped 'ith the thrusting motions emplo&ed !& accused-appellant, the resulting pain felt !& Rosil&n in her se5 organ 'as no dou!t a conse@uence of consummated rape.The pertinent portions of Rosil&nPs account of the 4ul& *2, /00, incident is as follo's)PRO;. L=>O)5 5 5 5 5 5 5 5 5C. The moment 'hen %ong. 4alos7os inserted his finger into &our vagina, 'hat 'as &our positionJI>TERPRETER)The 'itness is as(ing he "sic$ she has to demonstrateJFI;%A< L=>O)C. 7pali6anag mo langJA. & !ac( 'as rested on a pillo' and m& legs 'ere spread apart.C. Eou said that 'hen %ongressman 4alos7os inserted his finger into &our vagina, &our !ac( 'as rested on a pillo' and &our legs 'ere spread 'ide apart, 'hat else did he doJA. 8e lifted his shirt, and held his penis1 and again Kidini)it.di)it niya ang ari niya sa ari )o.KC. And 'hat did &ou feel 'hen he 'as doing that 'hich according to &ou and I 'ould @uote in Tagalog) Kidini)it.di)it niya yong ari niya sa ari )oJKA. I 'as afraid sir.C. And, after doing that) Kidini)it.di)it niya yong ari niya sa ari)o,K 'hat else did he doJA. After that, Kitinuto) niya po yong ari niya at idiniin.diin niya ang ari niya sa ari )o.KC. Eou said) K*ongressman Jalos9os itinuto) niya yong ari niya sa ari )o1 at idiniin.diin niya yong ari niya sa ari )o1K >o', 'hile he 'as doing that act, 'hat 'as the position of %ongressman 4alos7osJA. 8is t'o "*$ hands 'ere on m& side and since m& legs 'ere spread apart1 he 'as in-!et'een them, and doing an up'ard and do'n'ard movement."Ditness demonstrated a pushing, or pumping movement$C. For ho' long did %ongressman 4alos7os perform that act, pushing or pumping movement 'hile his penis, or Kang ari niya ay na)atuto) at idinidiin.diin yong ari niya sa ari moJKA. I donPt (no'.C. And 'hat did &ou feel 'hen %ongressman 4alos7os 'as ma(ing that movement, pushing, or pumpingJA. I felt pain and then I cried.C. Dhere did &ou feel the painJA. Inside m& vagina, sir.5 5 5 5 5 5 5 5 5.+2The childPs narration of the rape se@uence is revealing. The act of Kidini)it.di)it niyaK 'as follo'ed !& Kitinuto) niya DDD at idiniin.diin niya.K The Kidiniin.diin niyaK 'as succeeded !& KMasa)it po.K Pain inside her KariK is indicative of consummated penetration.The environmental circumstances displa&ed !& the graphic narration of 'hat too( place at the appellantPs room from 4une /- to 4une /, and 4une */ to 4une **, /00, are consistent 'ith the complainantPs testimon& 'hich sho's that rape 'as legall& consummated.In the case of &eople v *ampu$an, the victim put up a resistance --- !& putting her legs close together --- 'hich, although futile, someho' made it inconvenient, if not difficult, for the accused-appellant to attempt penetration. On the other hand, the ease 'ith 'hich accused-appellant herein perpetrated the se5ual a!use, not to mention the a!sence of time constraint, totall& distinguishes the instant case from *ampu$an. 8ere, the victim 'as passive and even su!missive to the lecherous acts of accused-appellant. Thus, even assuming that his penis then 'as flaccid, his act of holding, guiding and assisting his penis 'ith his one hand, 'hile touching, po(ing and pressing the same against Rosil&nAs vagina, 'ould surel& resultin even the slightest contact !et'een the la!ia of the pudendum and accused-appellantAs se5 organ.%onsidering that Rosil&n is a self-confessed se5 'or(er, and the circumstances of the alleged se5ual assault at !ar, the defense argued thatit is highl& impro!a!le and contrar& to human e5perience that accused-appellant e5ercised a ;partan-li(e discipline and restrained himself from full& consummating the se5ual act 'hen there 'as in fact no reason for him not to do so. In the same light, the defense li(e'ise !randed as unnatural the testimon& of Rosil&n that accused-appellant contented himself 'ith ru!!ing his penis clipped !et'een her thighs until he reached orgasm and desisted from full& penetrating her, 'hen Rosil&n 'as then entirel& at his disposal.The defense seems to forget that there is no standard form of !ehavior 'hen it comes to gratif&ing onePs !asic se5ual instinct. The human se5ual perversit& is far too intricate for the defense to prescri!e certain forms of conduct. Even the 'ord KperverseK is not entirel& precise, as 'hat ma& !e perverse to one ma& not !e to another. =sing a child of tender &ears 'ho could even pass as onePs granddaughter, to unleash 'hat others 'ould calldo'nright !estial lust, ma& !e utterl& nauseating and repulsive to some, !ut ma& peculiarl& !e a festive cele!ration of salacious fantasies to others. For all 'e (no', accused-appellant ma& have found a distinct and complete se5ual gratification in such (ind of li!idinous stunts and maneuvers.>evertheless, accused-appellant ma& not have full& and for a longer periodpenetrated Rosil&n for fear of perpetrating his name through a child from the 'om! of a minor1 or !ecause of his previous agreement 'ith his Ksu)ing 'uga6,K ;implicio Delantar, that there 'ould !e no penetration, other'ise the latter 'ould demand a higher price. This ma& !e the reason 'h& ;implicio Delantar gave his moc(ing fatherl& advice to Rosil&n that it is!ad if accused-appellant inserts his penis into her se5 organ, 'hile at the same time ordering her to call him if accused-appellant 'ould penetrate her. ;uch instance of penile invasion 'ould prompt ;implicio to demand a higher price, 'hich is, after all, as the ;olicitor Beneral calls it, the peculiarit& of prostitution.The defense contends that the testimon& of Rosil&n that accused-appellante7aculated on her thighs and not in her vagina, onl& proves that there 'as no rape. It should !e noted that this portion of Rosil&nPs testimon& refers to the 4une /# and */, /00, charges of acts of lasciviousness, and not the rape charges. In an& event, granting that it occurred during the t'in instances of rape on 4une /3 and 4ul& *2, /00,, the e7aculation on the victimPs thighs 'ould not preclude the fact of rape.There is no truth to the contention of the defense that Rosil&n did not see the penis of accused-appellant. As can !e gleaned from the a!ove-@uoted portions of the transcripts, Rosil&n une@uivocall& testified that accused-appellant held his penis then po(ed her vagina 'ith it. And even if she did not actuall& see accused-appellantPs penis go inside her, surel& she could have felt 'hether it 'as his penis or 7ust his finger.De no' come to the issue of 'hether or not Rosil&n 'as !elo' t'elve "/*$&ears of age at the time the rape complained of occurred. To !olster the declaration of Rosil&n that she 'as then eleven &ears old, the prosecution presented the follo'ing documents)"/$ Rosil&nPs !irth certificate sho'ing her !irthda& as a& //, /03#1+/"*$ Rosil&nPs !aptismal certificate sho'ing her !irthda& as a& //, /03#1+*"+$ aster os. 0,-/00-, 0,-/00#, 0,-/00,, and 0,-/00., respectivel&$, the trial court ac@uitted accused-appellant on the ground of reasona!le dou!t as the defense 'as a!le to prove that accused-appellant 'as not in anila !ut either in Dipolog or Dapitan %it& at the time the lascivious acts 'ere supposedl& committed. The evidence of the defense esta!lished that accused-appellant fle' to Dipolog on 4une *3, /00,, and sta&ed there until 4ul& 0, /00,.In %riminal %ases >os. 0,-/00/ and 0,-/003, for t'o counts of acts of lasciviousness allegedl& committed !oth in the earl& mornings of 4une /0 and 4ul& */, /00,, Rosil&n merel& testified that she felt some!od& touchingher private part !ut failed to identif& the person 'ho 'as performing those lecherous acts as she 'as too sleep& to 'a(e up. 8ence, accused-appellant 'as li(e'ise ac@uitted in these cases on the ground of reasona!le dou!t.Dith respect, ho'ever, to the acts of lasciviousness committed in the morning of 4une /# and **, /00,, and in the evening of 4une /-, /#, /3, and */, /00,, as 'ell as the rape perpetrated on 4une /3, /00, and 4ul& *2, /00,, accused-appellant failed to account for his 'herea!outs. A careful revie' of the pertinent transcript of stenographic notes reveals that accused-appellant did not give an& testimon& as to 'here he 'as at the time these crimes 'ere committed. %learl&, therefore, the trial court correctl& disregarded his unsu!stantiated defense of denial, 'hich cannot prevail over his positive identification !& Rosil&n as the culprit.As regards the charge of acts of lasciviousness committed in the morning of 4une /,, /00,, accused-appellant claimed that it 'as impossi!le for him to have committed the same !ecause he fle' to Dipolog on that da&. The records disclose, ho'ever, that accused-appellantPs flight 'as at 0)-2 a.m. The possi!ilit&, therefore, of accused-appellantPs having performed the lascivious acts on the victim !efore he 'ent off to the airport is not at all precluded. For his failure to prove the ph&sical impossi!ilit& of his presenceat the Rit9 To'ers in the morning of 4une /,, /00,, 'hen the se5ual a!useof Rosil&n 'as committed, his defense of ali!i must fail.Article III, ;ection # of Repu!lic Act >o. .,/2, states)*$ild &rostitution and ot$er SeDual A'use. --- %hildren, 'hether male or female, 'ho for mone& or profit, or an& other consideration or due to the coercion or influence of an& adult, s&ndicate or group, indulge in se5ual intercourse or lascivious conduct are deemed to !e children e5ploited in prostitution and other se5ual a!use.The penalt& of reclusion temporal in its medium period to reclusion perpetua shall !e imposed upon the follo'ing)5 5 5 5 5 5 5 5 5"!$ Those 'ho commit the act of se5ual intercourse or lascivious conduct 'ith a child e5ploited in prostitution or su!7ected to otherse5ual a!use1 &rovided, That 'hen the victim is under t'elve "/*$ &ears of age, the perpetrators shall !e prosecuted under Article ++#, paragraphs +, for rape and Article ++, of Act >o. +3/#, as amended, the Revised Penal %ode, for rape or lascivious conduct, as the case ma& !e) &rovided, T$at t$e penalty for lascivious conduct 6$en t$e victim is under t6elve 35E4 years of age s$all 'e reclusion temporal in its medium period1 5 5 5 . "Emphasis supplied.$In &eople v Optana,-- the %ourt, citing the case of &eople v Carin,-# e5plained the elements of the offense of violation of ;ection # "!$ ofR.A. .,/2, or the %hild A!use os. 0,-/03., 0,-/033, 0,-/030, 0,-/002, 0,-/00*, and 0,-/00+, charging him 'ith the a!ove-descri!ed lascivious acts.The penalt& for violation of ;ection # "!$ of R.A. .,/2, or the %hild A!use ot'ithstanding that R.A. .,/2 is a special la', accused-appellant ma& en7o& a minimum term of the indeterminate sentence to !e ta(en 'ithin the range of the penalt& ne5t lo'er to that prescri!ed !& the %ode.-.8o'ever, the trial court erroneousl& fi5ed the minimum term of the indeterminate sentence at eight "3$ &ears, eight "3$ months and one "/$ da&of prision mayor in its medium period. In the aforesaid case of 0ulla,-3 'e held that the penalt& ne5t lo'er in degree to reclusion temporal medium is reclusion temporal minimum, the range of 'hich is from t'elve "/*$ &ears and one "/$ da& to fourteen "/-$ &ears and eight "3$ months. 8ence, for violation of Article III, ;ection # "!$ of R.A. .,/2, accused-appellant shall suffer the indeterminate sentence of t'elve &ears "/*$ and one "/$ da& of reclusion temporal, as minimum, to fifteen "/#$ &ears, si5 ",$ months andt'ent& "*2$ da&s of reclusion temporal as ma5imum.At the time of commission of the crimes complained of herein in /00,, statutor& rape 'as penali9ed under ;ection // of R.A. .,#0, 'hich amended Article ++# of the Revised Penal %ode, to 'it)F$en and $o6 rape is committed. --- Rape is committed !& having carnal (no'ledge of a 'oman under an& of the follo'ing circumstances)/. :& using force or intimidation1*. Dhen the 'oman is deprived of reason or other'iseunconscious1 and+. Dhen the 'oman is under t'elve &ears of age or is demented.The crime of rape shall !e punished !& reclusion perpetua. 555.In statutor& rape, mere se5ual congress 'ith a 'oman !elo' t'elve &ears of age consummates the crime of statutor& rape regardless of her consent to the act or lac( of it. The la' presumes that a 'oman of tender age does not possess discernment and is incapa!le of giving intelligent consent to the se5ual act. Thus, it 'as held that carnal (no'ledge of a child !elo' t'elve &ears old even if she is engaged in prostitution is still considered statutor& rape. The application of force and intimidation or the deprivation of reason of the victim !ecomes irrelevant. The a!sence of struggle or outcr& of the victim or even her passive su!mission to the se5ual act 'ill not mitigate nor a!solve the accused from lia!ilit&.-0In the case at !ar, the prosecution esta!lished !e&ond reasona!le dou!t that accused-appellant had carnal (no'ledge of Rosil&n. oreover, the prosecution successfull& proved that Rosil&n 'as onl& eleven &ears of age at the time she 'as se5uall& a!used. As such, the a!sence of proof of an& struggle, or for that matter of consent or passive su!mission to the se5ual advances of accused-appellant, 'as of no moment. The fact that accused-appellant had se5ual congress 'ith eleven &ear-old Rosil&n is sufficient to hold him lia!le for statutor& rape, and sentenced to suffer the penalt& of reclusion perpetua.As to accused-appellantAs civil lia!ilit&, the amount of moral damages a'arded !& the trial court for each count of acts of lasciviousness under ;ection # "!$ of R.A. .,/2 should !e increased from P*2,222.22 to P#2,222.22.#2On the other hand, the a'ard of the amount of P#2,222.22 asmoral damages for each count of statutor& rape 'as correct.In &eople v Cor,#/ citing the cases of &eople v "ictor,#* and &eople v %ementiza,#+ 'e held that the indemnit& authori9ed !& our criminal la' as civil indemnit& eD delicto for the offended part&, in the amount authori9ed !& the prevailing 7udicial polic& and aside from other proven actual damages, is itself e@uivalent to actual or compensator& damages in civil la'. ;aid civil indemnit& is mandator& upon finding of the fact of rape1 it is distinct from and should not !e denominated as moral damages 'hich are !ased on different 7ural foundations and assessed !& the court in the e5ercise of sound 7udicial discretion.#- 8ence, accused-appellant should !eordered to pa& the offended part& another P#2,222.22 as civil indemnit& foreach count of rape and acts of lasciviousness.D8EREFORE, the Decision of the Regional Trial %ourt of a(ati, :ranch ,*, in %riminal %ase >os. 0,-/03# and 0,-/03, finding accused-appellant Romeo 4alos7os guilt& !e&ond reasona!le dou!t of t'o counts of statutor& rape, and sentencing him to suffer the penalt& of reclusion perpetua for each count, is AFFIRED. ;. As modified, accused-appellant is sentenced to suffer, for each count of acts of lasciviousness, the indeterminate penalt& of t'elve &ears "/*$ and one "/$ da& ofreclusion temporal, as minimum, to fifteen "/#$ &ears, si5 ",$ months and t'ent& "*2$da&s of reclusion temporal as ma5imum. Further, accused-appellant is ordered to pa& the victim, a. Rosil&n Delantar, the additional amount of P#2,222.22 as civil indemnit& for each count of statutor& rape and acts of lasciviousness. Finall&, the a'ard of moral damages for each count of acts of lasciviousness is increased to P#2,222.22.;O ORDERED.0avide, Jr, *J, -ellosillo, Melo, &uno, "itug, !apunan, Mendoza, &angani'an, Quisum'ing, &ardo, -uena, 0e Ceon, Jr, Sandoval.%utierrez, and *arpio, JJ, concur. GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG(.. No. RT2-$6-19#2 *e%eForothing leftJ">o repl&$.s. Fillafranca felt that her legs 'ere !eing parted as M4udge Pacuri!otN tried to insert his penis into her vagina, !ut she could sense he had difficult& 'ith erection. ;he felt penetration 'as slight. ;he recalled that he tried penetration more than three times, !ut 'as unsuccessful. ;he felt his heav& !reathing 'hile he planted vile (isses on her nec( and chest. 8er repeated pleasfor merc& had not done her an& good. >ot long after, he rolled over 'ith her and she found herself on top of him. 8e gra!!ed her hair and pushed do'n her face to his penis, and forced her to do oral se5 on him instead. ;he resisted, !ut he insisted sa&ing that it 'as 'hat he 'anted, other'ise she 'ould !e put toharm. ;he too( it to mean that he 'ill (ill her if she refuses him. ;cared, she relented and had oral se5 on him. ;he felt shamed as she suc(ed his limp penis. ;he 'as disgusted 'ith him, 'ith herself and the ver& act itself. ;till not having an erection, he released his grip on her. Dhile she 'as ph&sicall& and emotionall& e5hausted, she continued cr&ing for merc&, !ut M4udge Pacuri!otN 'as !oasting that no!od& in his right mind 'ould refuse his demands as he could easil& cause damage to an&!od&Ps honor if he 'anted to.s. Fillafranca then got up, and put on her under'ear and pants.M4udge Pacuri!otN also got up and too( his cell phone. ;he pulledthe sheets to cover herself !ecause her !louse 'as on the opposite side of the !ed. 8o'ever, he pulled the sheets from herand pushed her to the !ed half na(ed. ;he !raced herself 'ith her arms so that the she 'ould not !e pinned do'n on the !ed again. :ut to her surprise, he too( a picture of her, using his cell phone. ;he 'as petrified. 8e then loo(ed at the picture commenting that it 'as no good !ecause she 'as not smiling, so he ordered her to smile as he 'ill ta(e another picture of her. Although she defied him, &et he did ta(e another picture of her. ;he the hurriedl& put on her !louse 'hile he dressed up, fi5ed himself and tuc(ed his shirt and his gun.After M4udge Pacuri!otN settled the !ill, he led her out of the room. s. Fillafranca shrugged him off. At the garage, she 'as ushered to the front seat of the car. ;he 'as d&ing to go home. 8e drove !ac( to Bingoog %it&. On their 'a& !ac(, she turned her !ac( on him, closed her e&es, covered her face 'ith hand, and pretended to !e asleep. ovem!er *22# 'as incredi!le, !ecause on that date she 'as on her !irthda& leave, and 'as !us& preparing the dishes she 'as going to serve them during her part&. 8e emphasi9ed that the criminal complaints for rape, acts of lasciviousness and se5ual harassments filed !& s. Tan against him 'ith the %it& Prosecutors Office in Bingoog %it& and %aga&an de Oro %it&