Before this Court for automatic review is the Decision^[1] of the Regional Trial Court of Urdaneta, Pangasinan, Branch 46, in Criminal Case No. U-9581, which found accused-appellant Arturo Ocomen y Abrasaldo guilty beyond reasonable doubt of the rape of his fifteen-year-old daughter, Kristine Ocomen,^[2] and imposed upon him the death penalty.

Accusing her father of having raped her sometime in February 1998, Kristine executed an affidavit on March 3, 1998,^[3] stating therein among others:

04.	Q -	Why are you filing a complaint against your father?
	A -	He sexually abused me once & attempted to sexually abuse me once also, against my consent, sir.
05.	Q -	When & where did these happen?
	A -	Sometime in February 1998, last month, at about 11 o'clock in the evening, at Brgy. Cabacaraan, San Miguel, Pangasinan, and on or about 8:00 o'clock in the morning of March 3, 1998.
06.	Q -	Please state briefly on how did these happen?
	A -	Sometime in February 1998, last month, at about 11:00 o'clock in the evening, while I & my two younger brother, Arvin & Rodolfo Ocomen, were sleeping inside our room, my father woke me up & told me to go with him downstairs[s]. I queried him why and answered me (sic) to go with him downstair[s] & at the same time pulled my hand to follow him. Upon reaching downstair[s], he told me to have sex with him which I refused prompting him to slap my face & head repeatedly. After he stopped slapping me, I went back to the upper floor to sleep again. About 5 minutes after, he came back to me & told me again to have sex with him. When I refused again, he tried to persuade/insist to have sex with him & I continued refusing him. Then he went downstair[s] to get a chord (sic) & when he came back he tied my both hands behind my back. He then ripped off my t-shirt & bra & pulled my short pants & panty down to my legs. Then I started to cry & pleaded to him not to continue his sexual desire but refused to heed my plea. Then, he laid on top of me & inserted his penis inside my vagina. After satisfying himself, he went downstair[s].
07.	Q -	Were your two brothers awakened when you were crying while being sexually abused by your father?
	A -	Only my brother, Arvin Ocomen was awakened but he was scolded by our father when he was asking to (sic) our father why I was crying, sir.
08.	Q -	Was the incident repeated?
	A -	No more, 'sir. But he again attempted to sexually abused (sic) me against my consent, sir.
09.	Q -	When & where did this happen?
	A -	While I was lying inside our room at the upper floor (same place), he came up & ordered me to undress but when I refused, he ripped off my t-shirt & thereafter, he took off my bra. He then tied my both hands behind my back. Because I was crying my aunt, Moderna Tolete, heard me & went upstair[s] & upon seeing me, he asked my father 'Apay nga ikaskastam ta anak mo' and answered her 'Awan ti pakibiabiangam.' After that, they exchanged heated words & moments later, my aunt, Moderna, went downstair[s] & then my father followed, sir.

Accordingly, the following information was filed by the Provincial Prosecutor on April 3, 1998:

That sometime in February 1998, in the evening at Barangay Cabacaraan, San Manuel, Pangasinan, and within the jurisdiction of this Honorable Court, the above-named accused by means of force, violence and intimidation, did, then and there wilfully, unlawfully and feloneously (sic) tie the hands of Kristine Ocomen y Tolete, a minor, 15 years of age and accused's own legitimate daughter and thereafter have sexual intercourse with her without the latter's consent and against her will, to her damage and prejudice.

CONTRARY to Art. 335, Revised Penal Code, as amended by R.A. 7059 (sic) and R.A. 8353.^[4]

The case was docketed as Criminal Case No. U-9581.

On May 5, 1998, Kristine executed an affidavit of desistance before Provincial Prosecutor Restituto Dumlao, Jr., alleging that she had long forgiven the accused and, hence, she was no longer interested in his prosecution. She also manifested her desire for the dismissal of the case she filed against her father.^[5] Nevertheless, on May 26, 1998, Arturo Ocomen was arraigned and pleaded not guilty to the accusation. Trial on the merits ensued.

The prosecution presented Dr. Noel Obedoza of the Don Amadeo J. Perez, Sr. Memorial General Hospital in Urdaneta, Pangasinan. He testified that on March 3, 1998, he conducted a medical and physical examination on a rape victim, identified as Kristine Ocomen.^[6] His examination showed that Kristine's hymen was ruptured at 2, 6, 9 and 12 o'clock positions.^[7] The lacerations were already healed and could be about two (2) weeks old at the time of the examination.^[8] The lacerations were caused by a hard foreign object, which could be an erect male organ.^[9] However, he found no laceration or injuries on the upper part of the victim's body. ^[10]

The prosecution likewise presented SPO3 Avelino Sandi, Jr. of the Philippine National Police (PNP) San Miguel, Pangasinan, who testified that on March 3, 1998, he received a complaint from Panchito Salioa, Barangay Kagawad of Barangay Cabacaraan that Kristine Ocomen was raped by her father Arturo Ocomen.^[11] He went to Cabacaraan, together with SPO3 Gregorio Antonio and Eduardo Banggi to investigate and arrest the accused. Arturo initially refused to go with the policemen but later on, he was prevailed upon to accompany them to the police station.^[12] At the police station, he took the statements of Kristine as well as of Salioa and Moderna Tolete.^[13]

For a while, trial of the case could not be conducted because Kristine, who was summoned to testify, could not be located. On June 1, 1998, the trial court issued an order for her arrest for her failure to attend the hearing.^[14] However, SPO1 Rodolfo Abat Estacio reported that Kristine could not be located.^[15] The trial court ordered Police Senior Inspector Rodolfo Ramos Tadeo to explain why both Kristine and Panchito Salioa could not be located. In the same order, a representative of the local Department of Social Welfare and Development (DSWD) of San Miguel, Pangasinan was directed to appear before the court.^[16] On even date, another order was issued directing the Head of the CIG/PNP Urdaneta Detachment to locate Kristine and to bring her to the DSWD, Lingayen, Pangasinan.^[17]

It would appear that on March 5, 1998, Salioa and Carlos M. Tolete, Sr., uncle of Kristine, entered into an agreement with the Municipal Social Welfare and Development Officer of San Manuel where they manifested their willingness to take custody of Kristine. They also held themselves responsible for the safety and protection of Kristine, as well as her appearance during court hearings.^[18] Still, the police could not locate Kristine and during the hearing on June 15, 1998, the trial court gave the police and the DSWD three (3) days within which to produce Kristine.^[19]

Finally, on June 22, 1998, Kristine Ocomen gave her testimony before the trial court. She recounted that sometime in February 1998, at around 11 o'clock in the evening, she was sleeping beside her 12-year old brother in their house when her father, Arturo Ocomen removed her t-shirt and shorts and "raped" her.^[20] She likewise testified that before the act of rape, her father slapped her on the head several times because she refused to have sex with him. ^[21] However, while Kristine testified that she voluntarily reported the incident to the police and that she executed a sworn statement, she refused to affirm her answer to question no. 6 ^[22] of the sworn statement on the particulars of the act of rape. ^[23]

During the hearing on June 23, 1998 and after the prosecution rested its case, the defense manifested his intention to file a demurrer to evidence for "insufficiency of evidence," but the court intimated that it would not grant any motion and ordered the defense to present evidence. ^[24]

Only Arturo Ocomen testified for the defense. He admitted that Kristine is his daughter and that she was born in December 1982.^[25] He likewise admitted that sometime in February 1998, at around 11 o'clock in the evening, he woke up Kristine ^[26] but denied that he slapped her and forced her to have sex with him.^[27] He recalled that he only wanted her to boil some water for his coffee because he just came from the ricefield. After waking her up, he went downstairs to their kitchen and waited for Kristine to follow him but she did not heed his order^[28] so he just went to sleep.^[29] He surmised that Kristine filed a case against him because he scolded her.^[30]

After trial, judgment was rendered against the accused, as follows:

WHEREFORE, JUDGMENT is hereby rendered CONVICTING the accused beyond reasonable doubt of the crime of RAPE aggravated by relationship (between father and daughter below 18 years old) and the Court sentences ARTURO OCOMEN to suffer the penalty of DEATH to be implemented in the manner as provided for by law. The accused is hereby ordered to pay Kristine Ocomen the sum of P50,000.00 as moral damages and P20,000.00 as exemplary damages.

The Clerk of Court is hereby ordered to prepare the Mittimus and to transmit the complete records of this case to the Honorable Supreme Court.

The Warden, Bureau of Jail Management and Penology is hereby ordered to immediately deliver the person of Arturo Ocomen to the National Bilibid Prisons, Muntinlupa City, with proper escort and security.

SO ORDERED. ^[31]

Accused-appellant now avers that:

I

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED DESPITE THE DISCREPANCIES AND INCONSISTENCIES BETWEEN THE TESTIMONY OF PRIVATE COMPLAINANT AND HER SWORN STATEMENT.

II

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY DESPITE THE FAILURE OF THE PROSECUTION TO PROVE BEYOND REASONABLE DOUBT THE MINORITY OF THE ALLEGED RAPE VICTIM AND HER FILIATION WITH THE ACCUSED. ^[32]

Ordinarily, the conclusions of the trial courts command great weight and respect ^[33] unless the trial judge overlooked certain facts of substance and value which, if considered, might affect the result of the case,^[34] in which case this Court is compelled to reassess the findings reached by the trial judge. After a careful evaluation of the records of this case, the Court finds that the acquittal of accused-appellant is in order.

It is well-settled that while an absolute guarantee of guilt is not demanded by law to convict a person of a crime, there must at least be moral certainty that each element essential to constitute the offense and the identity of the person who committed the same are established by the prosecution. ^[35] To sustain a conviction for the crime of rape as charged, it is necessary for the prosecution to allege and prove the following basic elements: (1) sexual congress; (2) with a woman; (3) by force and without consent, and in order to warrant the imposition of the death penalty, the additional elements that (4) the victim is under eighteen [18] years of age at the time of the rape; and (5) the offender is a parent [whether legitimate, illegitimate or adopted] of the victim. ^[36]

In the case before us, the fact of rape was not sufficiently proved by the prosecution. On direct examination, Kristine testified as follows:

PROS. MENESES:
	I just withdraw that:
	Q	Did you experience an unusual event on February, 1998 at around 11:00 o'clock in the evening?
WITNESS:
	A	Yes, sir, there is.
	Q	What incident was that?
	A	My father raped me sir.
	Q	Where were you at that time when you said that your father raped you?
	A	At home sir.
	Q	Where in particular at your home?
	A	Upstairs sir.
	Q	And what are you doing at that time?
	A	I was sleeping sir.
	Q	And how did your father rape you, can you please narrate to the Honorable Court now?
	A	He undressed me sir.
COURT:
	Q	Who undressed you?
WITNESS:
	A	My father sir.
COURT:      Go ahead.
PROS. MENESES:
	Q	What clothes are you wearing at that time?
	A	T-Shirt and short sir.
	Q	And what did your father remove?
	A	My short sir.
	Q	By the way, when you said that you are sleeping at that time, who are your companions in sleeping?
	A	My younger brother sir.
	Q	You mean to say, your brother slept on single bed besides you?
	A	Yes sir.
	COURT:
	Q	How old is your brother?
	WITNESS:
	A	12 years old sir.
	PROS. MENESES:
	Q	After undressing your T-shirt and short, what did your father do next?
	WITNESS:
	A	He raped me sir.
	Q	What was the first thing that he did to show that he raped you?
	A	He slapped by head several times sir.
	Q	Why did he slap your head for several times?
	A	Because I don't like to have sex with him, sir.
	Q	And after that, what did he do next?
	A	He raped me sir.;
	COURT:
	Q	After your father slapped your head several times, what did he do next?
	WITNESS:
	A	After slapping me several times he got down sir.
	Q	And what did he do after getting down?
	A	He slept sir.
	PROS. MENESES:
	Q	Kristine, you said that your father undressed you by taking off your t-shirt and short pants and then he slapped you several times, in that particular situation and position, what did your father do next?
	WITNESS:
	A	He went down sir.
	Q	Kristine, is it not a fact that there was an occasion when you went to the Police Station of San Manuel, Pangasinan to report an incident regarding the rape being done by your own father?
	A	Yes sir.
	Q	And in that Police Station at San Manuel, Pangasinan, is it also true that you signed your sworn statement and answers all the questions profounded (sic) to you by the Police?
	A	Yes sir.
	Q	And in that sworn statement you narrated and told everything regarding this incident that you reported to them regarding the Rape?
	A	Yes sir.
	Q	Did you go to the Police Station voluntarily by your own initiative?
	A	Yes sir.
	Q	No body forced you to report the incident?
	A	Yes sir.
	Q	I would like to show a sworn statement which you signed, will you tell us if that is the sworn statement that you gave before the Police Station of San Manuel, Pangasinan consisting of two (2) pages?
	A	Yes, sir, this is my sworn statement.
	Q	And in this sworn statement which you just identified, in No. 5 question, which I quote: 'When and where did these happen? A - Sometime in February 1998, last month, at about 11:00 o'clock in the evening, at Brgy. Cabacaraan, San Manuel, Pangasinan, and on or about 8:00 o'clock in the morning of March 6, 1998 at Barangay Cabancaraan, San Manuel, Pangasinan particularly inside our room at the upper floor of our house, sir.'  Did you understand this question when asked of you?
	A	I cannot remember sir.
	PROS. MENESES:
		For purposes of marking, we pray that the sworn statement of the witness be marked as Exh. 'C' and the signature as Exh. 'C-l' for the Prosecution.
	COURT:      Mark it.
	PROS. MENESES:
	Q	So you cannot remember question No. 5. How about in Question No. 6, Please state briefly on how did these happen? And your answer: Sometime in February 1998, last month, at about 11:00 o'clock in the evening, at Brgy. Cabacaraan, San Manuel, Pangasinan, and on or about 8:00 o'clock in the morning of March 6, 1998 at Barangay Cabancaraan, San Manuel, Pangasinan particularly inside our room at the upper floor of our house, sir.' Did you understand this question when asked of you?
	A	I cannot remember sir.
	PROS. MENESES:
		For purposes of marking, we pray that the sworn statement of the witness be marked as Exh. 'C' and the signature as Exh. 'C- 1' for the Prosecution.
	COURT:      Mark it.
	PROS. MENESES:
	Q	So you cannot remember question No. 5. How about in Question No. 6, Please state briefly on how did these happen? and your answer:  Sometime in February 1998, last month, at about 11:00 o'clock in the evening, while I and my two younger brothers, Arvin and Rodolfo Ocomen, were sleeping inside our room my father woke me up and told me to go with him downstair[s]. x x x So for can you remember the answers that you gave to Question No. 6 which is now written in Exh. 'C'?
	WITNESS:
	A	Yes sir.
	COURT:
	Q	Can you understand English?
	WITNESS:
	A	Yes sir.
	PROS. MENESES:
	Q	You still further answer in the first question No. 6 of your statement marked Exh. 'C', which I quote: 'Then he went downstair[s] to get a chord (sic) and when he came back he tied my both hands behind my back. He then ripped off my t-shirt and bra and pulled my short pants and panty down to my legs. Then I started to cry and pleaded to him not to continue his sexual desire but refused to heed my plea. Then, he laid on top of me and inserted his penis inside my vagina. After satisfying himself, he went downstair[s].' Kristine, do you still remember that is your answer?
	A	Yes sir.
	Q	So Kristine, do you still affirm your answers what indeed happened on February 1998 at about 11:00 o'clock in the evening when your father raped you in your residence at Brgy. Cabacaraan, San Manuel, Pangasinan?
	A	No sir.
	Q	What do you mean by your answer, 'No sir'?
	A	I do not confirm it anymore, sir.
	Q	But you made and confirmed that there was indeed a meeting at the PNP San Manuel, Pangasinan and that your testimony was reduced into writing?
	A	Yes sir. [37]

It is clear from the foregoing that the prosecution failed to elicit any statement from Kristine that would show how the alleged rape was consummated. No proof was adduced that there was even a slightest penetration of the female organ aside from a general statement that Kristine was "raped." In People vs. Caingat, ^[38]  this Court declared that the use of the terms "sexual assault," "rape" and "carnal knowledge" in the testimony of the victim is not sufficient to establish the guilt of accused-appellant for the crime of rape. According to the Court, said statements fall short of the requirement of the law on the quantum of evidence required in the prosecution of criminal cases.^[39] Elaborating on what constitutes consummated rape, the Court continued:

x x x We have said often enough that in concluding that carnal knowledge took place, full penetration of the vaginal orifice is not an essential ingredient, nor is the rupture of the hymen necessary; the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge. But the act of touching should be understood here as inherently part of the entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or the pudendum.

xxx

The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness. ^[40]

It may be true that the sworn statement of Kristine was more explicit, more particularly to the following portion:

06.	Q -	Please state briefly on how did these happen?
	A -	Sometime in February 1998, last month, at about 11:00 o'clock in the evening, while I & my two younger brother, Arvin & Rodolfo Ocomen, were sleeping inside our room, my father woke me up & told me to go with him downstairs[s]. I queried him why and answered me (sic) to go with him downstair[s] & at the same time pulled my hand to follow him. Upon reaching downstair[s], he told me to have sex with him which I refused prompting him to slap my face & head repeatedly. After he stopped slapping me, I went back to the upper floor to sleep again. About 5 minutes after, he came back to me & told me again to have sex with him. When I refused again, he tried to persuade/insist to have sex with him & I continued refusing him. Then he went downstair[s] to get a chord (sic) & when he came back he tied my both hands behind my back. He then ripped off my t-shirt & bra & pulled my short pants & panty down to my legs. Then I started to cry & pleaded to him not to continue his sexual desire but refused to heed my plea. Then, he laid on top of me & inserted his penis inside my vagina. After satisfying himself, he went downstair[s].

However, when she was presented as a witness before the court, Kristine refused to affirm the contents of her affidavit. The discrepancies between the testimony and the affidavit relate to significant facts and could not be disregarded by this Court. It is a settled rule that between the affidavit and the testimony given in open court, the latter prevails^[41] and sworn statements are generally considered inferior to the testimony in open court. ^[42]

While the testimony of Dr. Obedoza may have proved the fact that Kristine had sexual relations, there was nothing in it that would prove that she was raped, or that accused-appellant was the perpetrator of the offense. Indeed, Kristine testified on cross-examination:

ATTY. FLORENDO: (CROSS-EXAMINATION): With the kind permission of the Honorable Court.
Q	Kristine, your father is Arturo Ocomen and your mother is Elvira Ocomen, am I correct?
WITNESS:
A	Yes, sir.
Q	According to you sometime in February, 1998 in the evening you claimed that your father slapped your head and after slapping you, he went down and slept, am I correct?
Q	After that he did nothing more, am I correct?
A	Yes sir.
Q	So, I have to be clear on this. You said that your father slapped on (sic) your head and after slapping you he went down and slept, he did nothing am I correct?
A	Yes sir. (Emphasis supplied.) [43]

Accused-appellant could not even be convicted for acts of lasciviousness. The most that Kristine testified to was that her father removed her t-shirt and shorts. There was nothing in the testimony that would show that her father touched her in any manner, aside from a general reference to "rape" which as earlier stated, this Court could not accept.

Verily, the evidence presented by the defense is equally weak. However, the evidence for the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the weakness for the evidence of the defense. ^[44]

WHEREFORE, accused-appellant Arturo Ocomen y Abrasaldo is ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. The Director of the Bureau of Corrections is hereby ordered to cause the release of appellant forthwith, unless he is being held lawfully for another cause.

SO ORDERED.

Davide, Jr., C. J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona, JJ., concur.
De Leon, Jr., J., on official leave.

---

^[1] Penned by Judge Modesto C. Juanson.

^[2] Her registered name is "Christine" but in her sworn statement and complaint, the victim signed her name "Kristine Ocomen", Records, at 4.

^[3] Exh. "C," Records, at 5.

^[4] Rollo, at 11.

^[5] Records, at 42.

^[6] TSN, 15 June 1998, at 4.

^[7] Id., at 5-6.

^[8] Id., at 7.

^[9] Id., at 6.

^[10] Id., at 8.

^[11] TSN, 15 June 1998, at 10.

^[12] Id., at 11-12.

^[13] Id., at 12.

^[14] Records, at 50.

^[15] 1^st Indorsement, dated 02 June 1998, id., at 59.

^[16] Id., at 62.

^[17] Id., at 64.

^[18] Id., at 69.

^[19] See TSN of  Dr. Obedoza, 15 June 1998, at 2.

^[20] TSN, 22 June 1998, at 5-7.

^[21] Id., at 7.

^[22] See p. 2 of this Decision.

^[23] Id., at 7-10.

^[24] TSN, 23 June 1998, at  4.

^[25] TSN, 07 July 1998, at 5-6.

^[26] Id., at 3.

^[27] Id.

^[28] Id., at 4.

^[29] Id., at 5.

^[30] Id., at 7.

^[31] Rollo, at 18-19.

^[32] Id., at 40.

^[33] People vs. Aranjuez, 285 SCRA 466 (1998).

^[34] People vs. Albao, 287 SCRA 129 (1998).

^[35] People vs. De la Cruz, G.R. No. 137969, 19 April 2001.

^[36] People vs. Banaya, 327 SCRA 771 (2000).

^[37] TSN, 22 June 1998, at 5-10.

^[38] G.R. No. 137963, 06 February 2002.

^[39] Id.,  citing People vs. Laguerta, 344 SCRA 453 (2000).

^[40] Id., citing People vs. Campuhan, 329 SCRA 270 (2000).

^[41] People vs. Mercado, 304 SCRA 504 (1999).

^[42] People vs. Cristobal, 306 SCRA 358 (1999).

^[43] TSN, 22 June 1998, at 12-13.

^[44] People vs. Manggasin, 306 SCRA 228 (1999); People vs. Vidal, 308 SCRA 1 (1999).