This is an appeal from the decision, dated July 21, 1997, of the Regional Trial Court, Branch 72, Antipolo, Rizal, insofar as it finds accused-appellant Ernesto Santos guilty of two counts of rape and orders him to pay complainant P500,000.00 in moral and exemplary damages in Criminal Case Nos. 94-11360 and 94-11361.

In three informations, all dated May 20, 1994, filed in the RTC, Antipolo, Branch 72, Rizal, accused-appellant was charged with two counts of rape and one count of attempted rape of his daughter Mary Ann, then aged 14.^[1] The informations alleged:^[2]

Criminal Case No. 94-11359:

That on or about the 7th day of February 1994, in the Municipality of Taytay, Province of Rizal, Philippine and within the jurisdiction of this Honorable Court, the above-named accused, by means of force, violence, and intimidation, did then and there willfully, unlawfully, and feloniously commence the commission of the crime of rape upon the person of one Mary Ann Santos Y Tabucao directly by overt acts, to wit: While the complainant was asleep, the accused touched her private parts and undressed her and tried to rape her, but was not able to perform all the acts that would have constituted the crime of rape by reason of the refusal and vigorous fight made by the complainant in defense of her honor and the timely arrival of complainant's aunt which caused the accused to desist from his intention.

CONTRARY TO LAW

Criminal Case No. 94-11360:

That on or about and sometime in the year 1988, in the Municipality of Taytay, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully, and feloniously have carnal knowledge with one Mary Ann Santos Y Tabucao, a minor nine (9) years of age, against her will and consent.

CONTRARY TO LAW.

Criminal Case No. 94-11361:

That on or about and sometime in the year 1989 in the Municipality of Taytay, Province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Mary Ann Santos Y Tabucao, a minor ten (10) years of age, against her will and consent.

CONTRARY TO LAW.

Accused-appellant pleaded "not guilty" in all three cases, whereupon trial was held. The cases were consolidated and jointly tried.

The prosecution presented evidence showing the following:^[3]

Sometime in 1988 in their house at L. Wood Street, Taytay, Rizal, complainant Mary Ann Santos slept with her father on a wooden bed (papag), as her mother, Nilda Tabucao Santos, had to stay beside her younger brother because he was sick. Mary Ann was awakened as she was being fondled by her father. Mary Ann resisted by pushing and kicking accused-appellant, but the latter threatened her, saying, "Papatayin ko kayong mag-iina" ("I'll kill you and your mother"). Her mouth was covered so that she could not shout. Accused-appellant went atop her and inserted his penis into her vagina. As Mary Ann cried in pain, she was assured by accused-appellant that "it will take . . .a few minutes only." After he was through, accused-appellant withdrew his organ, but he still held her in a tight embrace. At that point, Mary Ann's mother, Nilda, woke up and saw her husband embracing her daughter, both of them naked. She cursed accused-appellant and hurled invectives at him.

As a result of the incident, Nilda took her children and left accused-appellant. The separation, however, lasted for three months only. Upon the intercession of accused-appellant's mother, Nilda and her children returned to live with him again. The return, however, only made things worse for Mary Ann. From 1989 to 1994, she was raped "many times" by accused-appellant. Things came to a head on February 7, 1994. That evening, at around 8:00, while Mary Ann was sleeping, she was awakened because accused-appellant lay beside her. She asked him "what he was doing there. But he did not answer."

Mary Ann stood up and went to the sewing machine. Accused-appellant, however, followed her and told her, "Gusto kong makabawi" ("I want to get even"). When she asked him what he meant, he said she knew what he meant. This made Mary Ann ask him bluntly, "[W]hy is it that you are always doing those things to me as if I am not your daughter?"

Instead of answering, accused-appellant pulled Mary Ann towards the bathroom. Mary Ann got hold of a pair of scissors and tried to stab accused-appellant, but she was overpowered.

At that point, Mary Ann saw her cousin Marie.^[4] She asked Marie to fetch her grandmother. It was Mary Ann's Aunt Josie, however, who came and saved her from disgrace by accused-appellant. Mary Ann and her mother then reported the matter to the police. Mary Ann filed a complaint against accused-appellant.

On February 14, 1994, Dr. Rosaline Cosidon, a medico-legal officer of the Philippine National Police Crime Laboratory, examined Mary Ann. Dr. Cosidon's report shows the following:

FINDINGS:

GENERAL AND EXTRAGENITAL:

Fairly nourished, fairly developed and coherent female subject. Breasts are hemispherical with pale brown areola and nipples from which no secretions could be pressed out. Abdomen is flat and soft.

GENITAL:

There is moderate growth of pubic hair. Labia majora are full, convex, and coaptated with the pale brown labia minora presenting in between. On separating, the same is disclosed [as] an elastic, fleshy-type hymen with shallow healed lacerations at 1, 9, and 11 o'clock positions. External vaginal orifice offers moderate resistance to the introduction of the examining index finger and the virgin sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is normal in size, color, and consistency.

CONCLUSION:

Subject is in non-virgin state physically.

There are no external signs of recent application of any form of violence.

REMARKS:

Vaginal and peri-urethral smears are negative for gram-negative diplococci and for spermatozoa.

Dr. Cosidon testified that the healed lacerations were at least a week old and shallow because they only "reached about one-half of the width of the hymen." She opined that the lacerations could not be deeper because Mary Ann's hymen was thick.^[5]

After the prosecution had rested its case, accused-appellant testified in his defense, focusing solely on the charge of attempted rape against him.^[6] He denied that he had made an attempt on his daughter's honor in the evening of February 7, 1994, alleging that he was then away working in another place. He claimed that on February 5, 1994, he had had an altercation with his daughter Mary Ann because of the latter's refusal to wash his work clothes. Mary Ann allegedly told him, "Why don't you wash your clothes?", and when he asked her where her mother was, Mary Ann allegedly said, "Why are you asking me?" According to accused-appellant, he got mad and slapped Mary Ann. It was then when Mary Ann asked her cousin Marie to call her Aunt Josie. When Josie arrived, she talked to Mary Ann. That was the end of the matter as far as accused-appellant was concerned. He claimed he did not know why Mary Ann filed rape charges against him. He speculated that it was because he had maltreated his wife after he caught her flirting with a certain Romualdo.

Accused-appellant's relatives testified in his behalf. His sister, Josie Santos, corroborated his allegations, although she said the argument between accused-appellant and Mary Ann occurred in the morning of February 7, 1994. According to Josie, she was fetched by her niece Marie who told her that Mary Ann wanted to talk to her. When Jose saw Mary Ann, the latter was crying "[b]ecause her father asked her to do the laundry" and "that her father was holding something and was attempting to hit her." No mention was made by Mary Ann of accused-appellant's attempt to rape her, according to Josie.^[7]

Mary Ann's brother, Alan, likewise testified. He said Mary Ann never told him that accused-appellant had molested her.^[8] Mary Ann's paternal grandmother, Marcela M. Santos, who owns the house where the incidents subjects of these cases occurred, testified to the same effect.^[9]

On July 21, 1997, the trial court rendered its decision, the dispositive portion of which reads:

WHEREFORE, the Court finds accused ERNESTO SANTOS guilty beyond reasonable doubt of two (2) counts of Statutory Rape and he is hereby sentenced to suffer the penalty of Reclusion Perpetua for each count and to pay the amount of P50,000.00 for each count as provided for by law.

However, the Court finds said accused NOT GUILTY of the offense of Attempted Rape and he is thus ACQUITTED of the said charge.

Although the prosecution failed to prove any damages, moral and exemplary, the Court motu proprio awarded the amount of P500,000.00 as damages in both cases to the private complainant.^[10]

The trial court held:

Analyzing carefully the testimony of the accused and his witnesses, nothing has been said about the statutory rape[s], hence, the castle built by the prosecution stands on the basis of the testimony of Mary Ann. The Court firmly believes that it can stand the meticulous scrutiny of any legal mind, hence, the prosecution was able to prove the guilt of the accused Ernesto Santos beyond reasonable doubt. For the Court believes that Mary Ann, daughter of the accused, could not allow herself to be exposed to public ridicule and scandal leading to the destruction of her future and that of her family if such were not a fact in her complaint and if only to seek justice and redress for a despicable and bestial wrong inflicted upon her by the accused.

Moreover, the Court gives great weight and credence over private complainant's testimony considering the tender age of the complainant and the moral ascendancy exercised over her by the accused. Furthermore, the Court believes that accused could easily perpetrate his lustful desires on her daughter with a modicum of effort as when accused merely laid beside her and had carnal knowledge with her daughter with least resistance.

Further, the reason advanced by accused is patently shallow and unworthy of belief. The fact remains that Mary Ann considered the accused as her father and regarded him with respect and love that a daughter has for her father when she murmured the words "Why is it that you are always doing those things to me as if I am not your daughter?" The Court finds that such gesture inculcated upon the person of the private complainant could not possibly make her concoct and fabricate such charges against the accused if the same were not true.

Lastly, it should be worthy of note that no less than the Supreme Court, on more than one occasion has declared that rape committed by a father upon his daughter is "so monstrous that no punishment which is in the power of this, or any other human tribunal to decree, could possibly be sufficient expiation of the defense."^[11]

Hence this appeal.

After due consideration of the records of these cases, we find accused-appellant's conviction fully warranted.

I.
First. Accused-appellant argues that the informations in Criminal Case Nos. 94-11360 and 94-11361, charging him with rape, simply allege that "on or about and sometime" in 1988 and in 1989, respectively, he raped his daughter. He argues that these allegations are indefinite and have deprived him of the right to be informed of the nature and cause of the accusation against him. He cites United States v. Javier Dichao^[12] in which it was held:

. . . To allege in an information that the accused committed rape on a certain girl between October, 1910, and August, 1912, is too indefinite to give the accused an opportunity to prepare his defense, and that indefiniteness is not cured by setting out the date when a child was born as a result of such crime. Section 7 of the Code of Criminal Procedure does not warrant such pleading. Its purpose is to permit the allegation of a date of the commission of the crime as near to the actual date as the information of the prosecuting officer will permit, and when that has been done any date may be proved which does not surprise and substantially prejudice the defense. It does not authorize the total omission of a date or such an indefinite allegation with reference thereto as amounts to the same thing.^[13]

Accused-appellant's argument is without merit. Accused-appellant never asked for a bill of particulars nor moved to quash the informations before he was arraigned. This circumstance alone distinguishes this case from Dichao because in the latter case, the accused moved to quash the information on the ground that it did not allege the date of commission of the crime with some specificity.^[14] It is thus too late in the day for accused-appellant to question the form or substance of the informations in these cases.^[15]

Above all, under the Rules on Criminal Procedure,^[16] it is not necessary for the information to allege the date and time of the commission of the crime with exactitude unless the time is an essential ingredient of the offense. In the crime of rape, the date of commission is not an essential element of the crime.^[17]

The case of People v. Ladrillo^[18] is not applicable either to these cases because in that case, the information alleged that the rape was committed "on or about the year 1992," and this Court explained -

The phrase "on or about the year 1992" encompasses not only the twelve (12) months of 1992 but includes the years prior and subsequent to 1992, e.g., 1991 and 1993, for which accused-appellant has to virtually account for his whereabouts. Hence, the failure of the prosecution to allege with particularity the date of the commission of the offense and, worse, its failure to prove during the trial the date of the commission of the offense as alleged in the Information, deprived accused-appellant of his right to intelligently prepare for his defense and convincingly refute the charges against him.

In contrast, in these cases, the informations alleged that the rapes were committed in a definite year, i.e., 1988 in Criminal Case No. 94-11360 and 1989 in Criminal Case No. 94-11361.

Second. Accused-appellant questions the credibility of his daughter Mary Ann, pointing out that it took her more than five years (from the time the first rape was allegedly committed in 1988) to report the same to her mother and the police in February 1994. He argues that her failure as well as that of her mother to remember the day and month of the alleged rape that took place in 1988 make their testimonies untrustworthy.

These contentions are likewise without merit. We do not find the long silence of Mary Ann unnatural. As she said, since she was six years old, her father had already been molesting her by poking his finger into her vagina and she was "never taught that the acts of my father [were] wrong."^[19] When he first raped her in 1988, she was silenced by his threats. In the years which followed, while she testified her father continued to abuse her, she kept her silence out of fear of her father.^[20] But in February 1994, Mary Ann finally had enough. She asked accused-appellant why he had been abusing her when she is his daughter. The following observations of this Court in People v. Melivo^[21] are relevant:

A rape victim's actions are oftentimes overwhelmed by fear rather than by reason. It is this fear, springing from the initial rape, that the perpetrator hopes to build a climate of extreme psychological terror, which would, he hopes, numb his victim into silence and submissiveness. Incestuous rape magnifies this terror, because the perpetrator is a person normally expected to give solace and protection to the victim. Furthermore, in incest, access to the victim is guaranteed by the blood relationship, proximity magnifying the sense of helplessness and the degree of fear.

. . . The rapist perverts whatever moral ascendancy and influence he has over his victim in order to intimidate and force the latter to submit to repeated acts of rape over a period of time. In many instances, he succeeds and the crime is forever kept on a lid. In a few cases, the victim suddenly finds the will to summon unknown sources of courage to cry out for help and bring her depraved malefactor to justice.

Given this pattern, we have repeatedly ruled that the failure of the victim to immediately report the rape is not indicative of fabrication. "Young girls usually conceal for some time the fact of their having been raped." . . .

In all of these and other cases of incestuous rape, the perpetrator takes full advantage of his blood relationship, ascendancy, and influence over his victim, both to commit the sexual assault and to intimidate the victim into silence. Unfortunately for some perpetrators of incestuous rape, their victims manage to break out from the cycle of fear and terror. In People v . Molero [144 SCRA 397 (1986)], we emphasized that "an intimidated person cowed into submitting to a series of repulsive acts may acquire some courage as she grows older and finally state that enough is enough, the depraved malefactor must be punished."^[22]

Indeed, the following testimony of Mary Ann during direct examination clearly establishes accused-appellant's guilt:

PROSECUTOR:
	Now, in these 2 complaints which are the subject of the 3 information[s] against the accused, I am calling your attention particularly to Exhibit "D," a complaint for rape. You mentioned here the year 1988, could you recall the month when the incident happened?
A	No, sir.
Q	You could not also remember the exact day when the incident happened?
A	I cannot.
Q	Do you remember the place of the incident occurred?
A	Yes, sir.
Q	Where?
A	In our house.
Q	You could also recall the time when the incident happened?
A	One o'clock in the morning.
Q	Can you explain to us how that incident happened in your house at around 1:00 o'clock in the morning in the year 1988 of a date which you can no longer recall?
A	On that date I slept together with my father [on] one bed while my mother slept together with my youngest brother when all of a sudden, I felt that my father was touching my body.
Q	Please proceed.
A	When I opened my eyes, I saw it was my father Ernesto Santos. I resisted and he threatened me by uttering the words "Papatayin ko kayong Mag-iina."
Q	What happened next?
A	He took off all my clothes.
Q	After he took off all your clothes, what happened next?
A	While my father was removing my clothes I saw that he was also removing his short pants and his brief and once again, I resisted and he said that he will break . . . the bottle in my face if I will not heed . . . his desire.
Q	What else happened?
A	Because of his threat I was not able to talk and after that he went on top of me and tried to insert his penis [into] my vagina [in] which I felt extreme pain.
Q	You said extreme pain, what part of your body felt extreme pain?
A	My vagina.
Q	What happened next?
A	I moaned because of the pain that I felt and I told him that is enough father because its painful but my father told me that it will only take . . . a few minutes only and on that situation my mother woke up and saw that my father and I were both naked.
Q	Then what happened?
A	That was the cause of their quarrel and separation.
Q	Now, at that point when your mother saw you and your father both naked did she utter anything?
A	Yes, sir. She cursed invective words against my father.
Q	Was your father able to penetrate your vagina at that time of the sexual attempt?
A	Yes, sir.
Q	Did you see anything in your vagina?
A	Yes, sir. White hot fluid.
Q	Do you know from whose person that white hot fluid came from?
A	Yes, sir from my father's penis.
Q	So after that incident your father and mother have a quarrel which was the result of their separation, for how long did they separate?
A	Only for a few months.
Q	After a few months did you return to your house?
A	Yes, sir because my grandmother talked to my parents and after that they live together again.
Q	Now, in your statement, which you mentioned particularly in paragraph 6 you mentioned the year 1989 "ay muling naulit po sa akin ang panghahalay niya sa taong 1989" can you explain or describe to us how that incident happened again?
A	The same thing he did to me the first time by threatening me.[23]

It must not be forgotten that the crimes involved in these cases are rapes in which the victim is below 12 years of age so that the lack of consent of the victim to have sexual intercourse with accused-appellant is irrelevant.^[24]

As for Mary Ann's mother, Nilda, she explained that she did not report the incident to the police even after seeing her husband in 1988 in a compromising position with her daughter because of accused-appellant's plea for mercy and promise that he would not do it again.^[25] But as accused-appellant broke his promise, Nilda wasted no time in denouncing her husband to the police.

Third. Accused-appellant claims that the charges of rape were not supported by the results of the physical examination made on the victim by Dr. Rosaline Cosidon. Accused-appellant cites Dr. Cosidon's testimony that "the lacerations on the vagina of complainant daughter could have been inflicted about just a week before the date of the physical examination. Or, that probably it was a month old or a year old but certainly not six (6) years old."^[26]

What Dr. Cosidon actually said was that the lacerations in complainant's hymen "[were] probably inflicted more than a week at the time of the examination, sir."^[27] She further testified:

PROSECUTOR GONZALES:
Q	Now, could that shallow healed lacerations on the organ of the victim be caused by [a] male organ?
A	Possible, sir.
Q	And you said it was shallow healed lacerations, how shallow is it?
A	Those lacerations have reached about one-half of the width of the hymen, sir.
Q	What is . . . the difference between deep laceration and shallow laceration?
A	When you say deep, the laceration have reached more than one-half of the width of the hymen and when we say shallow the laceration have reached about one-half of the width of the hymen, sir.
Q	You mean the penis was not able to penetrate fully . . . the vaginal canal?
A	When we say shallow it does not mean it has penetrated the vaginal canal, sir.
Q	Was the hymen thick or thin?
A	Thick, sir.
Q	So the laceration could not be [deep] because of the thickness of the hymen?
A	Possible, sir.
Q	So that doctor, it could have been possible that the sexual intercourse could have . . . happened way back 1985?
A	Possible, sir.
Q	Is it possible because of the thickness of the hymen?
A	Yes, sir.[28]

As held in People v. Palicte,^[29] the fact that there was no deep penetration of the victim's vagina and that her hymen was still intact does not negate the commission of rape. If the victim is a child, rape can be done without penetration.

In these cases, the findings of the medical examination, which also stated that "[s]ubject is in non-virgin state physically," actually support the charges of rape against accused-appellant.

II.

As already shown, the circumstances of minority of the victim and relationship between her and accused-appellant are present in this case. Under R.A. No. 7659, the concurrence of these circumstances, if alleged in the information, would constitute a special aggravating circumstance. However, as the rapes in these cases were committed before R.A. No. 7659 took effect on December 31, 1993, these circumstances cannot be appreciated for the purpose of imposing the penalty of death under R.A. No. 7659. The paternal relationship, however, can be considered a generic aggravating circumstance^[30] for the purpose of awarding exemplary damages under Art. 2230 of the Civil Code.^[31] The penalty in the two cases remains reclusion perpetua as it is an indivisible penalty. The Revised Penal Code provides in pertinent part:

Art. 63. Rules for the application of indivisible penalties. - In all cases in which 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.

The trial court's awards of civil liability should be modified. While the trial court correctly awarded P50,000.00 civil indemnity for each count of rape, its award of P500,000.00 moral and exemplary damages is excessive and should be reduced as follows: P50,000.00 for moral damages for each count of rape, or a total of P100,000.00 moral damages^[32] and P25,000.00 for exemplary damages for each count of rape, or a total of P50,000.00 exemplary damages.^[33]

WHEREFORE, the decision of the Regional Trial Court, Branch 72, Antipolo, Rizal is AFFIRMED with the MODIFICATION that the awards of moral damages and exemplary damages shall be REDUCED to P100,000.00 and P50,000.00, respectively.

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

---

^[1] Mary Ann's Birth Certificate (Exh. A) states that she was born on June 12, 1979.

^[2] Records of Criminal Case No. 94-11359, p. 1; Records of Criminal Case No. 94-11360, p. 1; Records of Criminal Case No. 94-11361, p. 1.

^[3] TSN (Mary Ann Santos), pp. 2-15, Nov. 24, 1994; pp. 2-24, Dec. 1, 1994; pp. 3-6, March 14, 1995; TSN (Nilda Santos), pp. 2-22, Oct. 13, 1994.

^[4] Also referred to as "Maricris" in the Records.

^[5] TSN, pp. 8-9, Oct. 9, 1995.

^[6] According to accused-appellant's counsel, PAO Atty. Danilo Leyble, this was necessary so as "not to entangle the proceedings in the three cases." (TSN, p. 2, Dec. 19, 1995) Accused-appellant, however, never took the witness stand again.

^[7] TSN, pp. 1-9, July 18, 1996.

^[8] Id., p. 13.

^[9] Id., p. 16.

^[10] RTC Decision, p. 7, Rollo, p. 25.

^[11] Id., pp. 6-7; id., pp. 24-25.

^[12] 27 Phil. 421 (1914)

^[13] Id., p. 426.

^[14] See People v. Garcia, 281 SCRA 463 (1997)

^[15] People v. Lim, G.R. Nos. 131861-63, Aug. 17, 1999; People v. Alba, 305 SCRA 811 (1999); People v. Dimapilis, 300 SCRA 279 (1998)

^[16] Rule 110, §11, provides: Time of the commission of the offense .¾ It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit.

^[17] People v. Lim, supra; People v. Losano, G.R. No. 127122, July 20, 1999.

^[18] G.R. No. 124342, Dec. 8, 1999.

^[19] TSN, p. 14, Dec. 1, 1994.

^[20] Id., pp. 19-20.

^[21] 253 SCRA 347 (1996)

^[22] Id., pp. 356-358.

^[23] TSN, pp. 7-11, Nov. 24, 1994.

^[24] People v. Fraga, G.R. No. 134130-33, April 12, 2000.

^[25] TSN, p. 16, Oct. 13, 1994.

^[26] Supplemental Reply Brief, p. 1.

^[27] TSN, p. 7, Oct. 9. 1995.

^[28] Id., pp. 8-9.

^[29] 257 SCRA 543 (1994)

^[30] People v. Perez, 270 SCRA 526 (1997); People v. Lucas, 181 SCRA 316 (1990); People v. Porres, 58 Phil. 578 (1993)

^[31] Civil Code, Art. 2230: In criminal offenses, exemplary damages as a part of the civil liability may be imposed when the crime was committed with one or more aggravating circumstances. Such damages are separate and distinct from fines and shall be paid to the offended party.

^[32] People v. Prades, 293 SCRA 411 (1998)

^[33] People v. Tabion, G.R. No. 132715, Oct. 20, 1999.