In a sworn statement^[1] taken on 16 February 1991, Chanda Lucas y Austria, then seventeen years old, charged her natural father, accused Jose Conrado Lucas, of attempted rape committed against her on 12 February 1991. She revealed therein that she was first raped by him when she was only nine years old, or, as disclosed in a handwritten note at the left-hand margin of her sworn statement, "noong Nov. 26, 1982 ... at naulit ng maraming beses."

On 19 February 1991, Chanda, assisted by her mother, Ofelia Austria-Lucas, filed two separate sworn criminal complaints for rape^[2] and for attempted rape^[3] against her father with the Regional Trial Court of Quezon City. The complaints, docketed as Criminal Cases Nos. Q-91-18465 and Q-91-18466, were subsequently assigned to Branch 104 of the said court.

The accusatory portion of the complaint for rape in Criminal Case No. Q-91-18465 reads:

"That on or about the 26th day of November 1982 and sometime thereafter in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of violence and intimidation did then and there, wilfully, unlawfully and feloniously have sexual intercourse with the undersigned CHANDA LUCAS Y AUSTRIA, who was then nine (9) years old, now 17 yrs. of age, against her will, to her damage and prejudice in such amount as may be awarded to her under the provisions of the New Civil Code."

while that for attempted rape in Criminal Case No. Q-91-18466 reads:

"That on or about the 12th day of February 1991, in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the above named accused, did then and there wilfully, unlawfully and feloniously with lewd design and by means of force and intimidation, commence the commission of the crime of rape directly by overt acts by then and there taking advantage of complainant's tender age and innocence, by then and there putting his hand inside the panty of the undersigned and mashing her vagina while his other hand was pressing her nipples and at the same time kissing her on the lips, face and neck, thereafter accused placed himself on top of her but said accused did not perform all the acts of execution which should produce the said offense of rape by reason of the fact that the brother and sister of the undersigned was awakened and shouted upon the accused, a cause other than the spontaneous desistance of the said accused, that the aforesaid act of the said accused was done against the will of the undersigned, to her damage and prejudice in such amount as may be awarded to her under the provisions of the New Civil Code."

The cases were jointly tried after the accused had pleaded not guilty upon his arraignment.^[4] The prosecution presented as witnesses the complainant herself; her sister, Cynthia; and Dr. Emmanuel Aranas. The defense presented only the accused.

Complainant Chanda Lucas, who was born on 2 June 1973,^[5] testified that their house at 23-X Daropa Road, Baesa, Quezon City, has only one bedroom. On 26 November 1983, she was sleeping in the bedroom with her brother and sisters. Their mother did not sleep in their house at that time. At about 2:00 to 3:00 a.m., she awoke and realized that her father was removing her panty and shorts. He cautioned her to keep quiet. Then, her father, who was already naked, went on top of her and placed his sexual organ inside her vagina. She was hurt but did not resist because her father threatened to kill her. Only her older sister Cynthia witnessed the incident. Chanda reported the incident to her mother and her aunt but the former did nothing. When her aunt said that her father should be jailed, her mother did not agree.^[6]

The 26 November 1983 incident was only the first of many atrocities. Since then, her father had been repeatedly molesting her, especially when her mother was not around. The last assault on her womanhood occurred on 12 February 1991 when she was already seventeen years old. Before he had sex with her at 3:00 a.m. on 12 February 1991, he first moved her brothers and sisters, who were sleeping in the same room with her, to another place. She did not resist because he had a balisong with him and told her that he can take her life anytime. After the sexual assault, he stood up holding his balisong^[7] and again said that she has only one life and that he can take it anytime.

On the morning of 16 February 1992, in the company of her mother and uncle, she reported the incident to the police in their area. The police investigator questioned her and her sworn statement (Exhibit "D") was taken. In the afternoon of that day, she submitted to a medical examination at Camp Crame and a medical certificate was issued.^[8]

Cynthia Lucas Viado, the elder sister of Chanda, testified that she witnessed the incident of 26 November 1983. She was then thirteen years old while Chanda was only nine years old. She saw his father on top of Chanda, then she closed her eyes and covered her face with a blanket. She reported the incident and the fact that she saw blood on the underwear of Chanda to her aunt Neneng and her mother; the former was very angry upon learning of the incident but the latter did not believe her; at that time, her mother loved her father dearly.^[9] On cross-examination, Cynthia declared that her father intended to sexually abuse her on 26 November 1983 but because she resisted, her father instead raped Chanda. She was not able to help Chanda because she was afraid of her father. Their brother and another sister were not aware of the incident and they did not wake them up because they were ashamed of their neighbors.^[10]

Dr. Emmanuel Aranas testified that he examined the complainant on 16 February 1991 at the Crime Laboratory Services at Camp Crame pursuant to a letter-request^[11] from Capt. Jaime Q. Peralta of the Central Police district, Quezon City. His examination of her genitalia disclosed healed lacerations, but he could not determine when the lacerations were inflicted or sustained. He concluded that the complainant has had several sexual experiences and was no longer a virgin.^[12] He issued a written report of his findings.^[13] On cross-examination, he declared that he found no sperm on the organ of the complainant and that there were no signs of recent trauma or physical injuries on her.^[14]

On the witness stand, the accused testified that he and Chanda's mother, Ofelia Austria, are not married; however, since 1969, they had been living together as husband and wife until 1972, when he was detained for alleged gunrunning and when Ofelia and the children moved to Cotabato. They were reunited in 1977. He denied having raped his second daughter, Chanda, and alleged that the brothers and sisters of Ofelia, particularly Leonardo Austria, were all angry at him and instigated the filing of the fabricated charges against him. He further declared that Ofelia was angry at him because he intervened in guiding the life of Chanda. He could not recall anymore where he was on 26 November 1983. However, on 12 February 1991, he and Ofelia quarreled about Chanda's frequent late arrivals from school and, because of the quarrel, he "physically harmed" both of them.^[15]

On 28 October 1992, the trial court promulgated its decision^[16] in the two cases finding the accused guilty beyond reasonable doubt of two crimes of rape. The dispositive portion of the decision reads:

"WHEREFORE, judgment is rendered as follows:

In Crim. Case No. Q-91-18465, the prosecution was able to establish the guilt of the accused beyond reasonable doubt of the crime of rape as charged in the information, he is hereby sentenced to suffer the penalty of RECLUSION PERPETUA plus all the accessory penalties provided by law.

In Crim. Case No. Q-91-18466, the prosecution was able to establish the guilt of the accused beyond reasonable doubt of the crime of rape as charged in the information, he is hereby sentenced to suffer the penalty of RECLUSION PERPETUA, plus all the accessory penalties provided by law.

Accused is ordered to pay the victim the sum of P30,000.00 as actual and moral damages without subsidiary imprisonment in case of insolvency."^[17]

On 4 November 1992, the accused filed a notice of appeal.^[18] In his brief submitted to this Court, he alleges that the trial court erred:

"I

X X X IN GIVING UNMERITED VERACITY TO THE INCREDIBLE, UNPERSUASIVE AND UNRELIABLE TESTIMONIES OF THE PROSECUTION WITNESSES AND IN DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE.

II

X X X IN CONVICTING HIM OF THE CRIME OF RAPE IN CRIMINAL CASE NO. Q-91-18466 INASMUCH AS THE SAME IS MORE SERIOUS THAN THE OFFENSE CHARGED.

III

X X X IN CONVICTING ACCUSED-APPELLANT OF THE CRIME OF RAPE IN CRIMINAL CASE NO Q-91-18465 DESPITE THE FACT THAT HIS GUILT WAS NOT PROVED BEYOND REASONABLE DOUBT."^[19]

As to the first assigned error, the accused asserts that the conduct of his daughters, Chanda and Cynthia, after the alleged first sexual abuse casts doubt on their credibility. It is hard to believe that if Chanda were indeed raped by him when she was only nine years old and repeatedly thereafter, she would report the abuses only when she was seventeen years old. Several remedies were available to her and she had relatives who could extend their help.^[20]

He also contends that the testimony of Cynthia is not convincing; it was contrary to human experience and conduct for her to simply close her eyes and cover her face with a blanket upon witnessing the rape of her younger sister by their own father instead of helping Chanda. If she was afraid of her father at that time, she could have convinced Chanda to temporarily leave their house and seek shelter with her relatives. It was also unnatural for her to abandon Chanda when, as she claims, she fully knew the bestial tendencies of her father.^[21] As to his wife, Ofelia, he attributes to her an ulterior motive when she consented to the filing of the charges against him. Except for the souring of their relationship which ended in their separation, he finds no possible explanation why Ofelia believed Chanda's report on the 12 February 1991 incident when she, Ofelia, refused to heed Chanda and Cynthia's report concerning the 26 November 1983 incident.

Anent the second assigned error, he contends that he could not be validly convicted of rape in Criminal Case No. Q-91-18466 under a complaint for attempted rape only. He cites the rule that when the offense proved is more serious than that charged, the accused can only be convicted of the offense charged.

The appellee, through the Office of the Solicitor General, prays that the judgment of conviction in Criminal Case No. Q-91­-18465 be affirmed in toto. However, it submits that the accused can be convicted only of attempted rape in Criminal Case No. Q-91-18466. The appellee argues that the trial court correctly gave credence to the testimony of Chanda as it is "positive, straightforward and clearly revelatory only of the truth of the facts she experienced, without any dubious motive shown why she would bear false witness against appellant."^[22] The reaction which the accused expected of Chanda after the first rape and which she did not so manifest does not necessarily lead to a conclusion that she fabricated her story. As Chanda's father, he exercised absolute authority and moral influence over her. Moreover, at the tender age of nine, she was totally helpless and defenseless. And regarding the imputed motive of Chanda's mother, the same is too trivial to prompt her to falsely charge him with a grave crime.

The first and third assigned errors raise a question of fact which hinges on the credibility of the prosecution witnesses. The second involves a question of law.

In rape cases, this Court has been guided by three well?entrenched principles: (1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for the person accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness of the evidence for the defense.^[23]

Conclusions as to the credibility of witnesses in rape cases lie heavily on the sound judgment of the trial court. Accordingly, in the appreciation of the evidence, the appellate court accords due deference to the trial court's views on who should be given credence since the latter is in a better position to decide the question of the credibility of witnesses, having seen and heard these witnesses and observed their deportment and manner of testifying during the trial. The trial court's findings concerning the credibility of witnesses carry great weight and respect and will be sustained by the appellate court unless the trial court overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which would have affected the result of the case.^[24]

After a careful examination of the records and the evidence, we are unable to find any cogent reason to disturb the finding of the trial court that the accused raped his daughter, Chanda, on 26 November 1983 and 12 February 1991.

As regards the first charge, there is, however, a variance between the evidence presented and the allegations of the complaint. The complaint in Criminal Case No. Q-91-18465 charges the accused with the crime of rape committed on 26 November 1982. Both Chanda and Cynthia, however, testified that the incident took place on 26 November 1983.^[25] The accused offered no objection to such evidence. Consequently, the variance was not fatal to the prosecution.

In United States vs. Arcos,^[26] this Court ruled:

"Where time or place or any other fact alleged is not an essential element of the crime charged, conviction may be had on proof of the commission of the crime, even if it appear that the crime was not committed at the precise time or placed alleged, or if the proof fails to sustain the existence of some immaterial fact set out in the complaint, providing it appears that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information within the period of the statute of limitations, and at a place within the jurisdiction of the court. (U.S. vs. Smith, and cases cited, 2 Phil. Rep., 20)."

The unobjected testimony of another date of the commission of the crime charged in Criminal Case No. Q-91-18465 could even be the basis for an amendment of the complaint to make it conform to the evidence.^[27]

Section 14, Rule 110 of the Rules of Court also provides:

"SEC. 14. Amendment. -- The information or complaint may be amended, in substance and form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused.

x x x"

Chanda was less than twelve years old when she was raped by the accused on 26 November 1983. Since she was born on 2 June 1973, she was then exactly ten years, five months, and twenty-four days old.

Article 335 of the Revised Penal Code reads:

"ART. 335. When and how rape is committed. -? Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

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

3. When the woman is under twelve (12) years of age, even though neither of the circumstances mentioned in the two next preceding paragraphs shall be present.

x x x"

The third paragraph is known as statutory rape or the unlawful carnal knowledge of a woman below 12 years of age.^[28] Otherwise stated, carnal knowledge alone is sufficient for conviction as the presence of any of the circumstances mentioned in paragraphs 1 and 2 of Article 335 is not required.^[29]

As found by the trial court and fully supported by the evidence, the accused had carnal knowledge of his daughter Chanda -- then below twelve years old -- on 26 November 1983. We are not persuaded by the arguments of the accused that if indeed she were raped on that date and several times thereafter, she should not have kept her silence until she was seventeen years old since she had all the available remedies for redress as well as relatives who could help her. The equanimity or the wisdom of more mature persons cannot be expected from a young and immature girl like Chanda. We have said before that the workings of a human mind when placed under emotional stress are unpredictable and that people react differently to various situations.^[30]

In addition to her tender age and immaturity, Chanda was, to say the least, a victim of unfavorable circumstances not of her own making. These prevented her from exposing earlier the evil deeds of her father. All that she could proudly claim was a beautiful name -- Chanda. She had no decent home. Her father and her mother were not married and were untrammeled by the bonds of lawful wedlock. When she was born, her father was under detention for gunrunning and it was only when she was four years old (1977) when he rejoined his "family." Since then, all the members of the family slept in one room. Chanda had no choice of another home, for it does not appear that another was available to the family or that she was prepared to leave it because she had the means to face life alone or that a kind soul had offered her shelter. She was a victim of poverty and a virtual captive in the only "home" her natural parents could provide, for she was entirely dependent upon them.

Verily, she was completely under the moral ascendancy and control of her father and the fear alone of a harsher life outside such a "home" and of what her father would do if she would expose his evil deeds, made her suffer in silence for a long time the excruciating pains his assaults inflicted upon her. Then too, although she told her mother about the abuse committed by her father on 26 November 1983,^[31] her mother only got angry but did not do anything. Chanda must have felt despair at such indifference.

Her delay in reporting the sexual assaults to the authorities is thus understandable and does not affect her credibility. We do not believe that she would fabricate a story of defloration against her own father, make public her painful and humiliating experiences which are better kept in secret or forgotten, allow her private parts to be examined, and eventually bring to shame her own family and jeopardize her chances of marriage unless she was not telling the truth and was motivated by nothing but the desire to obtain justice for the grievous wrongs committed against her.^[32]

There was a consummated rape on 12 February 1991. According to Chanda's testimony, at 3:00 a.m. that day, the accused, who had a balisong with him, laid down beside her, threatened her that she had only one life which he can take away any time; removed her shorts and panty and then moved on top of her and inserted "his organ to her organ." Thereafter, he stood up holding his balisong and reiterated his earlier threat.^[33]

Considering, however, that the complaint for this incident subject of Criminal Case No. Q-91-18466 charges the accused with the crime of attempted rape, then, as correctly pointed out by the accused in his second assigned error and concurred in by the Office of the Solicitor General, he cannot be convicted of consummated rape.

Section 4, Rule 120 of the Rules of Court provides that "[w]hen there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved included in that which is charged, or of the offense charged included in that which is proved." The offense charged in Criminal Case No. Q-91-18466 (attempted rape) is necessarily included in the offense that was proved (consummated rape). Accordingly, the accused should be convicted of attempted rape only. The penalty for attempted rape is prision mayor, which is two degrees lower than that provided by law for rape.^[34] The accused is entitled to the benefits of the Indeterminate Sentence Law, and for attempted rape he may be sentenced to a penalty whose minimum should be within the range of prision correccional and whose maximum should be within the range of prision mayor, taking into account the modifying circumstances. The alternative circumstance of relationship provided for in Article 15 of the Revised Penal Code should be appreciated against the accused considering that the offended party, Chanda, is his descendant. In crimes against chastity, such as rape, relationship is aggravating.^[35]

Prior to R.A. No. 7659,^[36] the presence of modifying circumstances would not affect the penalty of reclusion perpetua prescribed for the crime of rape because such a penalty was then indivisible and under Article 63 of the Revised Penal Code, when the law prescribes a single indivisible penalty, it shall be applied by the courts regardless of any mitigating or aggravating circumstances that may have attended the commission of the deed. However, pursuant to Section 21 of R.A. No. 7659, which amended Article 27 of the Revised Penal Code, reclusion perpetua has now a defined duration, i.e., from twenty (20) years and one (1) day to forty (40) years. There is, however, no corresponding amendment to Article 76 of the same Code for the purpose of converting reclusion perpetua into a divisible penalty with three specific period -- minimum, medium, and maximum -- and including it in the table provided therein showing the duration and the time included in each of the periods.

It may thus be said that although the law has now fixed the duration of reclusion perpetua, it did not make explicit its intention to convert it into a divisible penalty. In any event, Article 65 of the Code which provides:

"ART 65. Rules in cases in which the penalty is not composed of three periods. -- In cases in which the penalty prescribed by law is not composed of three periods, the courts shall apply the rules contained in the foregoing articles, dividing into three equal portions of time included in the penalty prescribed, and forming one period of each of the three portions."

may be applied. Accordingly, the time included in the penalty of reclusion perpetua (twenty [20] years and one [1] days to forty [40] years) can be divided into three equal portions, with each composing a period. The periods of reclusion perpetua would then be as follows:

minimum -        20 years and 1 day to 26 years and 8 months

medium -       26 years, 8 months and 1 day to 33 years and 4 months

maximum -        34 years, 4 months and 1 day to 40 years

Taking into account the presence of the aggravating circumstance of relationship in Criminal Case No. Q-91-18465, the accused may finally be sentenced to thirty-four (34) years, four (4) months and one (1) day of reclusion perpetua.

Considering again such aggravating circumstance, the accused may be sentenced in Criminal Case No. Q-91-18466 to an indeterminate penalty ranging from four (4) years, two (2) months and one (1) day of prision correccional maximum as minimum to ten (10) years and one (1) day of prision mayor maximum as maximum.

There should also be awards for damages in each of the two cases.

WHEREFORE, the challenged Decision of 28 October 1992 of Branch 104 of the Regional Trial Court of Quezon City in Criminal Case No. Q-91-18465 and Criminal Case No. Q-91-18466 is hereby AFFIRMED, subject to the modifications indicated above. As modified:

(1) In Criminal Case No. Q-91-18465, accused JOSE CONRADO LUCAS y BRIONES is hereby sentenced to suffer the penalty of Thirty-four (34) years, Four (4) months and One (1) day of reclusion perpetua and to pay the offended party the sum of P50,000.00 as civil indemnity; and

(2) In Criminal Case No. Q-91-18466, said accused is hereby found GUILTY beyond reasonable doubt of the crime of ATTEMPTED RAPE only and is hereby sentenced to suffer an indeterminate penalty ranging from Four (4) years, Two (2) months and One (1) day of prision correctional maximum as minimum to Ten (10) years and one (1) day of prision mayor maximum as maximum and to pay the offended party the sum of P30,000.00 as civil indemnity.

Costs against the accused-appellant.

SO ORDERED.

Bellosillo and Quiason, JJ., concur.
Cruz, (Chairman), and Kapunan, JJ., on official leave.

---

^[1] Exhibit "D."

^[2] Original Records (OR), Criminal Case No. Q-91-18465, 1; Rollo, 2.

^[3] Id., Criminal Case No. Q-91-18466, 1; Id., 4.

^[4] OR, Criminal Case No. Q-91-18465, 16; Criminal Case No. Q-91-18466, 9.

^[5] TSN, 4 May 1992, 8.

^[6] TSN, 27 April 1992, 6-13.

^[7] Id., 16-19.

^[8] TSN, 27 April 1992, 21-26.

^[9] TSN, 4 May 1992, 19-22.

^[10] Id., 25-28.

^[11] Exhibit "A."

^[12] TSN, 17 March 1992, 6-11.

^[13] Medico-Legal Report No. M-0218-91 (Exhibit "B").

^[14] TSN, 17 March 1992, op. cit., 12-14.

^[15] TSN, 3 June 1992, 2-7.

^[16] OR, 76-83; Rollo, 11-18. Per Judge Maximiano C. Asuncion.

^[17] OR, 83; Rollo, 18.

^[18] OR, Criminal Case No. Q-91-18465, 85.

^[19] Rollo, 31.

^[20] Appellant's Brief, 7-8; Rollo, 37-38.

^[21] Id., 9; Id., 39.

^[22] Rollo, 74; citing People vs. Santito, 201 SCRA 87 [1991].

^[23] People vs. De los Reyes, 203 SCRA 707 [1991]; People vs. Tismo, 204 SCRA 535 [1991]; People vs. Casinillo, 213 SCRA 777 [1992]; People vs. Matrimonio, 215 SCRA 613 [1992].

^[24] People vs. Matrimonio, supra.

^[25] TSN, 27 April 1992, 6-7; 28; TSN, 4 May 1992, 3, 18-19, 25-26.

^[26] 11 Phil. 555, 561-562 [1908]. See also People vs. Puedan, 196 SCRA 388 [1991].

^[27] People vs. Rivera, 33 SCRA 746, 751 [1970].

^[28] People vs. Villegas, 127 SCRA 195 [1984]; People vs. Puedan, supra.

^[29] People vs. Lagrosa, G.R. Nos. 105956-57, 23 February 1994.

^[30] People vs. Cabradilla, 133 SCRA 413 [1984]; People vs. Grefiel, 215 SCRA 596 [1992].

^[31] TSN, 27 April 1992, 12-13.

^[32] People vs. Matrimonio, supra.

^[33] TSN, 27 April 1992, 16-19.

^[34] Article 51, in relation to Article 335, Revised Penal Code.

^[35] People vs. Porras, 58 Phil. 578 [1933]; People vs. Lucas, 181 SCRA 316 [1990]; People vs. Matrimonio, supra.

^[36] "An Act To Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose The Revised Penal Code, As Amended, Other Special Penal Laws, and for Other Purposes." It took effect fifteen days after its publication in two newspapers of general circulation. It was published in the 16 December 1993 issues of the Manila Bulletin and The Philippines Times Journal.