This is an automatic review of the Decision^[1] of the Regional Trial Court of Kalibo, Branch 2, convicting appellant Elpedio Torres y Cañete of rape and sentencing him to suffer the death penalty.

The Case for the Prosecution

Lerma V. Briones, at 27 years old, wanted to work overseas. She left her residence in Kalibo, Aklan, and arrived in Iloilo City on November 10, 1997, to attend a week-long seminar sponsored by the Philippine Overseas Employment Administration for overseas contract workers. After the seminar on November 17, 1997, she proceeded to the terminal of the L-300 van that would transport her back to Kalibo. It was about 5:00 p.m. The appellant, who was the driver of the van, and his dispatcher demanded that each of the three passengers pay P150.00 instead of the regular fare of P100.00.  The passengers agreed and boarded the van.  One of the passengers was seated beside the appellant. The second passenger sat behind the driver, while Lerma seated herself in the next row. The passenger seated beside the appellant alighted at Mambusao, Capiz at 8:00 p.m. The other passenger transferred to the seat beside the appellant, while Lerma transferred to the seat behind the driver. When the other passenger alighted at Altavas at 9:30 p.m., the appellant told Lerma to transfer in front, to the seat beside him. Lerma agreed and seated herself beside the appellant. However, Lerma noticed that the van traveled much slower than when they were still in Iloilo on their way to Altavas.

At about 11:00 p.m., as the van was nearing a bridge in Feliciano, Balete, Aklan, it suddenly stopped. The appellant touched the part of the engine under Lerma's seat and told her that the engine had overheated. He also told Lerma that they had to sleep in the van for a while, and wait until after the engine had cooled.  Lerma protested, saying that her mother was waiting for her, but the appellant switched off the light of the van.

Suddenly, the appellant pulled out a knife with his right hand and forced Lerma to lean against the seat.  He then pointed the knife at her breast, and removed her pants and panties. The appellant himself removed his pants and briefs.  He warned her not to resist, otherwise, she would be killed.  Petrified, Lerma could do nothing when the appellant ordered her to spread her legs.  He inserted his penis into her vagina and made push and pull movements.  Lerma felt pain in her vagina. The appellant later pulled out his penis and put his underwear and pants back on.  He ordered Lerma to put on her clothes.

The appellant then started the engine and drove on to Kalibo. Instead of driving the van to its terminal, the appellant drove it towards Lerma's house.  By then, it was about midnight.  Lerma called out for her mother, and the appellant hurriedly drove off.  Lerma then told her mother Leny de Juan, that the appellant had raped her.  They proceeded to the police station and reported the incident to SPO1 Salvador Flores who took Lerma's sworn statement.^[2] SPO1 Flores accompanied them to the terminal, but the appellant was nowhere to be found.

At 9:00 a.m., the following day, Lerma, her mother Leny, her sister Linda, and the latter's husband, Jaime Francisco, proceeded to the Ceres Transportation Terminal at Osmeña Avenue, in an attempt to locate the appellant.  When they found the latter, they contacted the police station.  Policemen arrived and were told that the appellant was in an L-300 van parked nearby. When the policemen proceeded to the van, they saw the appellant and arrested him.

Dr. Mary Grace B. Villaruel subjected Lerma to an examination and prepared a Medico-Legal Report containing the following findings:

PPE: Parous Introitus
	= (+) Myrtiform caruncles
	= (+) Old hymenal tears at 3 o'clock, 5 o'clock, & 7 o'clock position
	= Vagina admits two fingers with ease.
	No signs of physical injuries.
	Direct Smear No spermatozoa seen on smear.[3]

The appellant was charged with rape in an Information, the accusatory portion of which reads:

That on or about 11:00 o'clock in the evening of 17^th November, 1997, at Barangay Feliciano, Municipality of Balete, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there by means of force, violence and intimidation, employing thereby the use of a knife, willfully, unlawfully and feloniously succeeded to have carnal knowledge of a woman named LERMA V. BRIONES, without the consent of and against the latter's will, to the    damage and prejudice of said LERMA V. BRIONES.

CONTRARY TO LAW.^[4]

The appellant was arraigned, assisted by counsel, on March 3, 1998, and entered a plea of not guilty.

The Case for the Appellant

The appellant denied having raped Lerma.  He admitted that he was the driver of the L-300 van and that Lerma was one of his passengers. He testified that in the afternoon of November 17, 1997, before he left Iloilo City with Lerma and two other female passengers on board, he checked the van's engine and found it in good condition. When a passenger alighted in Altavas, it was Lerma who volunteered to sit beside him in the front seat for the rest of the journey to Kalibo. When the van reached Sitio Lumbucan, he noticed that something was wrong with the engine.  The engine finally conked out when the van reached Feliciano, at about 9:00 p.m.

The appellant then touched that part of the engine under Lerma's seat and alighted from the van to open the hood of the vehicle.  Lerma followed suit and held up a flashlight while the appellant examined the engine.  He discovered that the wires, from the battery to the engine, had been disconnected. He reconnected them and the engine started. The van left Feliciano at 9:30 p.m. and reached Kalibo at about 10:00 p.m.  The appellant drove the van directly to Lerma's house instead of the terminal because it was the shortest route and he was already feeling sleepy.  When Lerma alighted from the van, the appellant retrieved her luggage and handed it over to her.  Before the appellant could re-start the van, Lerma stopped him, saying that she forgot a plastic bag containing x-ray negatives inside.  The appellant gave the bag to her and left.

After due trial, the court rendered judgment convicting the appellant of rape and sentenced him to suffer the death penalty, taking into account the use of a knife by the appellant in committing the crime of rape.  The decretal portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered finding herein accused ELPEDIO TORRES y CAÑETE GUILTY beyond reasonable doubt of the heinous crime of RAPE, as defined and penalized under Art. 335 (1), as amended by R.A. No. 7659, in relation to Art. 63, par. 2 (1), Revised Penal Code, which provides:

"In all cases in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof:"

'1.  When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied;'

and also in relation to Art. 14 (6), Revised Penal Code which provides:

"6.  That the crime be committed in the nighttime, or in an uninhabited place, x x x whenever such circumstances may facilitate the commission of the offense;"

and is hereby sentenced to suffer the single individual penalty of DEATH, considering that he committed the crime of rape with the aggravating circumstances of nighttime and in an uninhabited place, without any mitigating circumstance; to pay the offended party the amount of P50,000.00 for the single count of sexual assault, (People vs. Tan, Jr., 264 SCRA 425); and to pay the costs.

SO ORDERED.^[5]

On appeal, the appellant assigned the following errors to the trial court, viz:

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT DESPITE THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT.

ASSUMING THAT THE ACCUSED-APPELLANT IS GUILTY AS CHARGED, THE TRIAL COURT STILL ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH UNDER THE CIRCUMSTANCES.^[6]

On the first assigned error, the appellant contends that (1) Lerma failed to sufficiently resist the sexual assault to preserve her virtue; (2) it was impossible for the appellant to have raped the victim with his right hand while he held a knife; (3) with the fragility of the evidence of the prosecution, the trial court should have given credence to his alibi.

The contentions of the appellant are barren of merit.

Lerma's failure to offer tenacious and sufficient resistance does not imply her submission to the appellant's bestial demands. It is not required that she resists the appellant's sexual advances. All that is necessary is that force and intimidation were employed by the appellant against her, which enabled him to commit the crime. Neither is it necessary for the victim to sustain physical injuries.^[7] She need not kick, bite, hit or scratch the appellant with her fingernails to prove that she had been defensive.  It is sufficient that she yielded because of a real application of bodily harm.^[8]

Intimidation must be viewed in the light of the victim's perception and judgment at the time of the commission of the crime and not by any hard and fast rule. It is enough that it produces fear an uncontrollable fright that if the victim does not yield to the bestial demands of the accused, something would happen to her and/or her family at the moment or even thereafter, as when she is threatened with death if she should report the incident.^[9] Force and intimidation or violence required in rape cases is relative and need not be overpowering or irresistible when the accused sexually assaulted the victim.^[10] In this case, the appellant brought the victim to a secluded place.

The issue raised by the appellant pertains to the credibility of Lerma as a witness and the probative weight of her testimony. The trial court gave credence and probative weight to Lerma's account of the events. Case law has it that the findings of facts of the trial court, its calibration of the evidence of the parties, and its conclusions anchored on its findings are accorded by the appellate court high respect if not conclusive effect, unless the trial court ignored or overlooked, misconstrued or misinterpreted cogent facts and circumstances which, if considered, will alter the outcome of the case.^[11] After a meticulous review of the records, we find no basis to deviate from the trial court's findings and its assessment of Lerma's testimony and the probative weight thereof.

The evidence on record shows that when the appellant started to abuse Lerma, he pointed a knife at her breast and warned her that he would kill her if she resisted.  She was so petrified that she could no longer offer any resistance. The appellant, thus, succeeded in raping Lerma:

FISCAL BRIONES:
	(continuing)
Q	Madam Witness, why do you know that he did not touch anything when according to you the light of the van was already put off?
A	I was looking and observing him.
Q	You mean to tell this Honorable Court that in spite of the darkness of the night you can still see him?
A	Yes, sir, because I was observing him.
COURT: (To Witness)
Q	How far were you seated at that time when he put off the light?
A	He was still seated at the driver's seat.
Q	He did not move?
A	No, Your Honor.
Q;	How many minutes after he stopped the engine that he moved?
A	Around one (1) minute.
COURT:
	Continue Fiscal.
FISCAL BRIONES:
	(continuing)
Q	And after the driver who is now the accused commented that the engine cannot function because it was overheated, what follows next?
A	He told me that if it is possible we will spend the night there, the car will no longer move.
Q	What was your answer?
A	I told him that my mother was waiting for me.
Q	After stating that what happened next?
A	He came near me.
Q	And when he was near you, what happened?
A	He kissed me by the lips.
Q	While he was kissing you in your lips, did you notice where his hands were?
A	He tried to place my hands crossed over my breast and tried to push me against the seat.
COURT: (To Witness)
Q	Your seat?
A	Yes, Your Honor.
FISCAL BRIONES:
	(continuing)
Q	It was dark?
A	Yes, sir.
Q	But can you tell this Honorable Court how many hands did he use in pressing your hands against your breast?
A	One hand because the other hand was holding a knife.
Q	Madam Witness, how did you know that the other hand was holding a knife when it was dark?
A	I felt that he was holding something sharp touching my breast.
Q	After your arms were pressed against your breast and according to you an object was pointed against your breast, what happened next?
A	He tried to undress me.
COURT: (To Witness)
Q	Before undressing you, did he say anything?
A	He addressed me that if I will fight against him he will kill me.
Q	Did he do any preliminary acts before pulling your pants?
A	No, Your Honor, he just removed my pants and panties.
COURT:
	Continue.
FISCAL BRIONES:
	(continuing)
Q	As he was removing your pants, can you describe what clothes were you using then? You said you have pants, what kind of clothes were you wearing above your waistline?
A	Yellow loose T-shirt.
Q	What about the jeans that you were using, can you describe it whether it was fitting or loose?
A	Loose jeans that is for travel.
Q	Was it long?
A	Long pants.
COURT:
	(To Witness)
Q	Up to your feet?
A	Yes, Your Honor.
COURT:
	Continue.
FISCAL BRIONES:
	(continuing)
Q	You were then wearing shoes or slippers?
A	Sandals.
Q	Was that sandals removed?
A	Yes, sir.
Q	And after removing your pants, what other garments were removed from you?
A	My panties.
Q	After your pants and panties were removed, what happened next?
A	He tried to let my legs spread.
COURT: (To Witness)
Q	Did he do it forcefully when your legs were spread out?
A	Yes, Your Honor.
Q	Did you do it voluntarily?
A	Yes, Your Honor, because I was afraid.
Q	What about his condition at that time, was he bare or not?
A	Yes, Your Honor.
Q	Below his waist or everything?
A	Only his pants and brief were removed.
COURT:
	Continue.
FISCAL BRIONES:
	(continuing)
Q	Madam Witness, after he removed your panties, how long after that - - you said that he spread your legs. As your legs were being spread, was he saying anything?
A	He did not say anything.
COURT: (To Witness)
Q	Are you sure that he did not say anything?
A	He said something to me.
FISCAL BRIONES:
	(To Witness)
Q	What did he say?
A	If I will not agree, he will kill me.
Q	And after both legs were already spread, what happened next?
A	He tried to place his organ on top of my organ. My legs were already spread out and then he inserted his organ inside my organ.
COURT: (To Witness)
Q	Did he succeed in inserting?
A	Yes, Your Honor.
Q	What did you feel? Were you happy or satisfied?
A	No, Your Honor.
Q	Did you not enjoy?
A	No, Your Honor, no feeling.
COURT:
	Continue.
FISCAL BRIONES:
	(continuing)
Q	You said that he placed the accused placed himself on top of you and inserted his penis in your vagina; what was then your position when he was on top of you?
A	My legs were spread out and I was slightly lying. (Witness demonstrating)
Q	And as his penis was inserted into your vagina in that position, as you demonstrated, what did he do?
A	He made pumping motion push and pull.
COURT: (To Witness)
Q	For how long?
A	About 15 pumps, push and pull movements.
FISCAL BRIONES:
	(continuing)
Q	After performing that 15 push and pull movement according to you, what happened next?
A	He pulled out his organ from mine.
Q	After he pulled out his organ, what happened next?
A	That ends, he told me to dress up.
Q	Did you follow?
A	Yes, sir.
Q	And after you have put on your clothes, what happened next?
A	He started the engine because the overheat was already over and drove the car fast.[12]
	. . .
Q	You did not protest and do something with the vehicle?
A	I did not. What I was feeling was afraid (sic).
Q	Why were you afraid?
A	Because the place where the car stopped was dark and if he intends to do something, he can.
Q	Was there any vehicle passing by?
A	No more.
Q	Not even one?
A	Yes, ma'am.
Q	So, what happened next?
A	After saying that if we can spend the night there, he went near me and suddenly kissed me on my lips.
Q	What did you do when he kissed you?
A	I pushed him away.
Q	When you pushed him, what happened to him?
A	He told me not to fight back because he will kill me.
Q	Kill you with what?
A	He has a knife pointed at my breast.
Q	How did you know it was a knife because you said earlier that it was dark inside and even outside of the van?
A	I felt that he was holding something pointed.
Q	So, you are not sure whether it was a knife or anything at all?
A	I am certain that it was a knife because it was sharp.
Q	Could it be his finger?
A	I can feel if it was his finger.  I can distinguish.
Q	Do you know what hand, right or left?
A	The right hand was holding a knife.[13]

We have held that no standard form of behavior may be expected when a person is confronted by a shocking or harrowing and unexpected incident, for the workings of the human mind when placed under emotional stress are unpredictable. Some may shout, some may faint, while others may appear to yield to the intrusion.^[14]

It was not physically impossible for the appellant to rape Lerma while he held a knife with his right hand.  His left hand was free. It bears stressing that the appellant forced Lerma to lean against the passenger's seat and undressed her with his left hand:

Q	What was the left hand holding?
A	His left hand was removing my pants.
Q	Are you saying that the right hand was holding a knife and the left hand was holding down your pants?
A	Yes, ma'am.
Q	What was your position at that particular time?
A	He let me lean on my seat.
Q	Have you noticed any difficulty on the part of the driver because as you said, he was only doing it with his left hand?
A	No ma'am. He forcefully removed my pants with his left hand.
Q	Was there a time that he removed his right hand holding the knife over your breast?
A	The knife was always on his right hand, he did not release it.
Q	So, was there any participation on your part in the removal of your pants?
A	No ma'am.
Q	You said that the driver also removed his wearing apparel. Can you remember what was he wearing then?
A	He was wearing slacks like Atty. Macabales'.
COURT: (To Witness)
Q	Long or short?
A	Long, Your Honor.
ATTY. DELA CRUZ:
	(continuing)
Q	It was not a jeans?
A	No ma'am, like the trousers of Atty. Macabales. (Witness pointing to the slacks of Atty. Macabales)
Q	Did you not do anything to repulse the said attack of the driver on your person?
A	I did not do anything because he might kill me.[15]

We find it highly inconceivable for Lerma to conjure a tale of sexual assault and in the process subject herself and her family to disgrace, social humiliation and tribulation attendant to a prosecution for rape, as well as the stigma of a lifetime of shame incident thereto. Moreover, the conduct of Lerma immediately following the assault is of utmost importance so as to establish the truth or falsity of her charge of rape.^[16] In this case, Lerma immediately unraveled the details of the appellant's sexual assault on her to her mother and sister.  Lerma, her mother and her sister immediately reported the matter to the police authorities. When Lerma and the policemen failed to find the appellant, they resumed their search the next day. Lerma's spontaneous revelation of the assault on her and her unrelenting determination to have the appellant arrested and prosecuted of rape are indicia of the verisimilitude of her claim that she was, indeed, raped by the appellant.^[17]

We agree with the appellant that the trial court erred in sentencing him to suffer the death penalty for raping the victim on its findings that the use of deadly weapon,^[18] nighttime^[19] and uninhabited place^[20] were attendant in the commission of the crime.

We note that the prosecution proved beyond cavil that the appellant committed the crime at nighttime to facilitate the commission of the crime and with the use of a knife, a deadly weapon, to intimidate the victim.  However, the prosecution failed to prove the aggravating circumstance of uninhabited place (despoblado).  In People v. Cabiles,^[21] this Court held that the more important consideration is whether the place of the commission of the offense is a reasonable possibility for the victim to receive some help. Before despoblado could be appreciated against the accused, it must be established that solitude was purposely sought or taken advantage of to facilitate the commission of the crime.  We find that the prosecution failed to prove such circumstance in this case.

The Information failed to allege the aggravating circumstance of nighttime as required by Section 8, Rule 110 of the Revised Rules of Criminal Procedure, which reads:

SEC. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.

Although the crime was committed before the Revised Rules of Criminal Procedure took effect, the same should be applied retroactively because it is favorable to the appellant.^[22] Hence, the aggravating circumstance of nighttime should not be appreciated against him.

Under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, the imposable penalty for the crime is reclusion perpetua to death. Since no aggravating circumstance attended the commission of the crime, the imposable penalty is reclusion perpetua, conformably to Article 63 of the Revised Penal Code.

The trial court awarded P50,000.00 to the victim as civil indemnity ex delicto. However, it failed to award moral and exemplary damages. The victim is also entitled to P50,000.00 as moral damages^[23] and P25,000.00 as exemplary damages.^[24]

IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Kalibo, Branch 2, is AFFIRMED with MODIFICATION. The appellant Elpedio Torres y Cañete is found guilty of simple rape under Article 335 as amended by Republic Act No. 7659, and is hereby sentenced to suffer the penalty of reclusion perpetua. The appellant is directed to pay to the victim Lerma V. Briones P50,000.00 as civil indemnity ex delicto; P50,000.00 as moral damages; and P25,000.00 as exemplary damages.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.

---

^[1] Penned by Judge Tomas R. Romaquin.

^[2] Exhibit "C," Records, p. 4.

^[3] Exhibit "A," Records, p. 6.

^[4] Records, p. 1.

^[5] Rollo, p. 26.

^[6] Id. at 52.

^[7] People v. Vidal, 353 SCRA 194 (2001).

^[8] People v. Bismote, 370 SCRA 305 (2001).

^[9] People v. Patriarca, 319 SCRA 87 (1999).

^[10] People v. Miranda, 262 SCRA 351 (1996).

^[11] People v. Blanco, 324 SCRA 280 (2000).

^[12] TSN, 20 March 1998, pp. 22-29 (Lerma Briones).

^[13] Id. at 46-47.

^[14] People v. Burgos, 370 SCRA 325 (2001).

^[15] Id. at 47-49.

^[16] People v. Cepeda, 324 SCRA 290 (2000).

^[17] People v. Perez, 296 SCRA 17 (1998).

^[18] Under Article 335 of the Revised Penal Code, as amended, the use of a deadly weapon is a special aggravating circumstance.

^[19] Article 14, paragraph 6, Revised Penal Code.

^[20] Ibid.

^[21] 248 SCRA 207 (1995).

^[22] People v. Garcia, G.R. No. 145505, March 14. 2003.

^[23] People v. Pagsanjan, G.R. No. 139694, December 27, 2002.

^[24] People v. Villanueva, G.R. No. 146464-67, November 15, 2002.