For automatic review is the Decision^[1] dated September 10, 1999 of the Regional Trial Court (RTC) of Malolos, Bulacan, Branch 78, in Criminal Case No. 530-M-98, convicting Bienvenido Valindo y Pilande of rape and sentencing him to suffer the penalty of death.

On April 17, 1998, an Information was filed with the said RTC charging Bienvenido with rape defined and penalized under Article 335 of the Revised Penal Code, as amended by R.A. No. 8353.^[2] The Information reads:

"That in or about the month of November, 1997, in the Municipality of Baliuag, Province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there wilfully, unlawfully and feloniously, by means of force and intimidation, with lewd designs, have carnal knowledge of his stepdaugther, Jewelyn Abat y Franco, a seven-year old girl, against her will and without her consent.

"CONTRARY TO LAW."  (Emphasis supplied)

Upon arraignment, the accused pleaded not guilty to the charge.  Thereupon, trial ensued.

The evidence for the prosecution consisting of the testimonies of Jewelyn Abat, the victim, Dr. Manuel C. Aves and Ramona Franco, the victim's mother, is as follows:

In November of 1997, at about noontime, Jewelyn Abat was at home in Libis, Baliuag, Bulacan.  While caring for her two younger siblings, 4-year old Benjie and 3-year old Rosita, and putting them to sleep, the accused, live-in partner of her mother, suddenly undressed her, placed himself on top of her and inserted his penis into her vagina.  She could not shout because he threatened to kill her and her mother.  While he was still on top of her, she saw a white substance came out of his penis.^[3] Thereafter, sensing that her mother was coming, the accused instructed her to wear her clothes.   When she failed to immediately comply, he hit her with his pants.  She was already dressed when her mother arrived.^[4] Jewelyn went to sleep without reporting the incident to her mother.  She, however, revealed her ordeal to her friend, Rose, who informed her older brother.  In turn, he shared the story with his friend Joy.  The latter then reported the incident to the Barangay and police authorities.^[5]

On December 5, 1997, Dr. Manuel C. Aves, the Medico-Legal Officer of the Philippine National Police (PNP) Regional Crime Laboratory, Office 3, Malolos, Bulacan, conducted a physical examination on Jewelyn.  His Medico-Legal Report dated December 5, 1997^[6] indicates that her genital showed multiple, fresh healed lacerations at 3, 5, 9 and 12 o'clock positions, with abrasion and congestion at the hymenal wall^[7] sustained recently.^[8] He explained that the lacerations in her vagina were caused by the penetration therein of a male organ or any hard object.  When interviewed, Jewelyn confessed that she was raped by Bienvenido.^[9]

Ramona Franco testified that she is the mother of Jewelyn who was born on October 16, 1991 in Carpa, Baliuag, Bulacan.  She tried to secure a copy of Jewelyn's birth certificate from the Local Civil Registry but was told that her daughter's birth was not registered there.  She was then required to submit an "Affidavit To Prove Birth,"^[10] but still she was not issued Jewelyn's birth certificate.

Accused Bievenido Valindo denied having raped Jewelyn in November, 1997.  He admitted that he is the live-in partner of Ramona Franco, Jewelyn's mother.  From November to December 1997, he was in Talacsan, San Rafael, Bulacan, as he was hired as caretaker by Nardo of his mango trees.  The distance between his work place and Baliuag where the incident took place is only a 30-minute jeepney ride.

On September 10, 1999, the trial court rendered its Decision, the dispositive portion of which reads:

"WHEREFORE, the foregoing considered, this Court finds accused Bienvenido Valindo y Pilande GUILTY beyond reasonable doubt of the crime of rape defined and penalized under the provisions of Article 335 of the Revised Penal Code, as amended by Republic Act No. 8353, otherwise known as the Anti-Rape Law of 1997, and hereby sentences him to suffer the penalty of DEATH and to pay private complainant Jewelyn F. Abat the amount of P75,000.00 as moral damages.  With costs.

"SO ORDERED."

Hence, this appeal.

Appellant contends that the trial court erred -

"I

IN FINDING THE ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE;

"II

IN IMPOSING THE DEATH PENALTY; and

"III

IN ORDERING ACCUSED-APPELANT TO PAY VICTIM THE AMOUNT OF P75,000.00 AS MORAL DAMAGES."^[11]

We meticulously reviewed the evidence of  both the prosecution and the defense and  found that appellant, by force and intimidation, succeeded in having sexual intercourse with Jewelyn.  She was telling the truth, as observed by the trial court.  We have consistently held that the trial court's findings on the credibility of witnesses are accorded great respect and weight on appeal as it is in a better position to decide the question of credibility, having seen and heard the witnesses themselves and observed their behavior and manner of testifying.^[12] The trial court's disquisition on this matter is as follows:

"Sufficiently established by the prosecution is not only the fact that complainant Jewelyn Abat was seven (7) years old at the time of the commission of the crime but, more emphatically, the sexual congress between the accused and the complainant was accomplished by the employment of intimidation by the former.

"The candid, straightforward and categorical narration by the complainant bears the earmarks of truth and credibility.

"Such candid and straightforward narration of the sexual assault unmistakably deserves credence.  No woman, especially a child, would concoct a story of defloration, allow examination of her private parts and subject herself to public trial or ridicule if she has not, in fact, been a victim of rape and impassioned to seek justice for the wrong done to her being (People vs. Gregorio Bersabe, G.R. No. 122768, April 27, 1998).

"That it is only the complainant who testified on the details of the accused's execrable deed is of no moment.  For, so long as the testimony of the offended party meets the test of credibility, as in the instant case, the accused may be convicted on the basis thereof (People vs. Fernando Tumala, Jr., G.R. No. 12210, January 20, 1998).

"Moreover, the complainant's testimony is adequately supported by the medico-legal report of Dr. Manuel Aves (Exh. B) indicating the presence of multiple healing lacerations at 3, 5, 9 and 12 o'clock positions with abrasion and congestion with discharge.

"Equally immaterial, on the basis of Sec. 11, Rule 110 of the Rules of Court,^[13] is the prosecution's failure to give the exact date of the commission of rape.

"The failure of the complainant to state the exact date and time of the commission of rape is a minor matter and can be expected when the witness is recounting the details of a humiliating experience which are painful and difficult to recall in open court and in the presence of other people.  Moreover, the date of the commission of the rape is not a essential element of the crime (People vs. Rodolfo Bernaldez, G.R. No. 109780, Aug. 17, 1998)."^[14]

The positive, convincing and credible testimony of Jewelyn cannot certainly be overthrown by appellant's self-serving defense of denial and alibi.  Well-settled is the rule that alibi is accepted only upon the clearest proof that appellant was not and could not have been at the crime scene when it was committed.^[15] Such defense is worthless in the face of the positive identification by a credible witness that the appellant perpetrated the crime.^[16] As correctly found by the trial court:

"Constituting the accused's alibi is his allegation of having been working in the farm in Talacsan, San Rafael, Bulacan at the precise date and time of commission of the crime in Little Baguio, Baliuag, Bulacan.

x          x          x

"Noteworthy to the Court is the obviously wavering testimony of the accused.  His declarations are riddled with unexplained inconsistencies characteristic of falsehood and concoction.  The Court, at one point, even explicitly found him evasive to squarely respond to the questions propounded on him.

"Further, the farm in Talacsan, San Rafael where the accused claims to be at on the date of the incident is just 30 minutes jeepney-ride away from Little Baguio, Baliuag, Bulacan.  This, added to the fact that the complainant's residence where the rape incident took place is likewise the residence of the accused.  There thus exists no impossibility for the accused to have been in his Little Baguio residence on the date of the incident.

"For the defense of alibi to prosper, the requirements of time and place must strictly meet.  It is not enough to prove that the accused was somewhere else when the crime was committed; he must also demonstrate that it was physically impossible for him to have been at the crime scene or the time the crime was committed (People vs. Bernaldez, supra)."^[17]

In evaluating the correctness of the imposition of the death penalty on appellant, pertinent is Republic Act (R.A.) No. 7659 which took effect on December 31, 1993, as amended by R.A. No. 8353 which took effect on October 22, 1997.  Section 11 of R.A. 7659, as amended, provides:

"Section 11.    The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances:

"1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.

x x x"

The minority of the victim and her relationship to the offender are special qualifying circumstances that elevate the penalty to death.  To be properly appreciated, these twin circumstances must be both alleged in the Information and proven with certainty.^[18]

Appellant submits that the trial court erred in imposing the death penalty considering that while the Information alleges that the victim is seven (7) years old and that she is his stepdaughter, however, such special qualifying circumstances were not proven by the prosecution.  Specifically, it failed to present the victim's certificate of live birth.

There was no more need for the prosecution to present Jewelyn's certificate of live birth or other equally acceptable official document to prove her age.  In People vs. Doroteo Abaño,^[19] such independent proof can be dispensed with in cases where the court can take judicial notice of the victim's tender age in view of the manifest minority of the victim.  Judicial notice of the victim's age may be taken when the victim is ten (10) years old or below.^[20] The trial court carefully noted in its Decision that Jewelyn then was only seven (7) years old.  Ramona Franco, the victim's mother, categorically testified that her daughter was born on October 16, 1991.  This Court has ruled that the testimony of the mother is admissible as she is in the best position to know when she delivered her child.^[21] Even the appellant himself admitted, when he testified in May of 1999, that she was "about seven (7) years old."^[22]

However, the allegation in the Information that the victim is the stepdaughter of appellant has not been established.  The prosecution failed to prove that appellant and Jewelyn's mother were married.  Thus, only the penalty of reclusion perpetua can be imposed on appellant.

In People vs. Manggasin,^[23] this Court held:

"x x x, although a common-law husband is subject to punishment by death in case he commits rape against his wife's daughter, nevertheless, the death penalty cannot be imposed on accused-appellant because the relationship alleged in the information in Criminal Case No. 4730-0 against him is different from that actually proven. Accordingly, accused-appellant must be sentenced to the lesser penalty of reclusion perpetua."

As regards appellant's civil liability, the victim is entitled to an award of moral damages, but not in the amount of P75,000.00 as ordered by the trial court.  Likewise, she should have been awarded civil indemnity.  Consistent with current jurisprudence, the award to her of P50,000.00 as moral damages and another P50,000.00 as indemnity ex delicto are in order. ^[24]

WHEREFORE, the appealed Decision of the trial court is AFFIRMED with  MODIFICATION.  Appellant Bievenido Valindo is hereby sentenced to suffer reclusion perpetua and is ordered to pay the victim, Jewelyn Abat y Franco, P50,000.00 as moral damages and P50,000.00 as indemnity ex delicto.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., and Carpio, JJ., concur.

---

^[1] Penned by Judge Gregorio S. Sampaga.

^[2] The Anti-Rape Law of 1997.  It took effect on October 22, 1997 (Florenz D. Regalado, Criminal Law Conspectus, First Edition [2000], p. 478).

^[3] Transcript of Stenographic Notes (TSN), February 12, 1999, pp. 2-4.

^[4] Ibid., pp. 4-5.

^[5] Ibid., pp. 5-6.

^[6] Exhibit "B," RTC records, p. 144.

^[7] Exhibit "B-1," ibid..

^[8] Ibid., February 24, 1999, pp. 3-4.

^[9] Ibid., p. 4.

^[10] Exhibit "C," RTC records, p. 145.

^[11] Brief for the Accused-Appellant, pp. 37-38.

^[12] People of the Philippines vs. Marcelo Palermo y Carias, G.R. No. 120630, June 28, 2001, citing People vs. Lakibul, 217 SCRA 575 (1993) and People vs. Ching, 240 SCRA 267 (1995).

^[13] This rule provides:  "Sec. 11.  Time of the commission of the offense. 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."

^[14] Rollo, pp. 17-18.

^[15] People vs. Gargar, 300 SCRA 542 (1998); People vs. Nescio, 239 SCRA 493 (1994).

^[16] People vs. Grefaldia, 298 SCRA 337 (1998); People vs. Abapo, 239 SCRA 469 (1994).

^[17] Rollo, pp. 18-19.

^[18] People vs. Calayca, 301 SCRA 192 (1999).

^[19] G.R. No. 142728, January 23, 2002, citing People vs, Jacob, G.R. Nos. 138576-77, July 13, 2001.

^[20] People vs. Rivera, G.R. No. 139180, July 31, 2001.

^[21] People vs. Boras, G.R. No. 127495, December 22, 2000.

^[22] TSN, May 19, 1999, p. 10.

^[23] 306 SCRA 228 (1999).

^[24] People vs. Pecayo, Sr., People vs. Erlindo Makilang, G.R. No. 139329, October 23, 2001, citing People vs. Poñado, 311 SCRA 529 (1999).