This is an appeal from the decision^[1] of the Regional Trial Court, Branch 130, Caloocan City, finding accused-appellant Sonny Buendia guilty of two counts of rape and sentencing him to suffer the penalty of reclusion perpetua in each case and to indemnify the offended party, Maribel Caliwag, in the amount of P50,000.00 as civil indemnity and an additional P50,000.00 as moral damages per count of rape, or P200,000.00 in totality, and to pay the costs.

The complainant in the two cases, Maribel Caliwag y Garcia, is the sister of the common law wife of accused-appellant Sonny Buendia.

The information in Criminal Case No. C-42738 alleged

That on or about the month of September, 1992 in Kal. City, MM, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and taking advantage of his superior strength, by means of force, threats and intimidation employed on the person of one, MARIBEL CALIWAG  y GARCIA, did then and there wilfully, unlawfully and feloniously lie with and have sexual intercourse with the undersigned, a minor of sixteen (16) years old, against her will and without her consent.

CONTRARY TO LAW.^[2]

On the other hand, the  information in Criminal Case No. C-42739 charged

That on or about the month of November, 1992 in Kal. City, MM, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and taking advantage of his superior strength, by means of force, threats and intimidation employed on the person of one, MARIBEL CALIWAG y GARCIA, did then and there wilfully, unlawfully and feloniously lie with and have sexual intercourse with the undersigned, a minor of sixteen (16) years old, against her will and without her consent.

CONTRARY TO LAW.^[3]

Upon arraignment, accused-appellant entered a plea of not guilty, whereupon the cases were jointly tried.

The prosecution presented evidence to the following effect:

Sometime in September 1992, at about 4 o'clock in the afternoon, Maribel Caliwag was alone lying in the sala of their house in Mulawin Street, Amparo Subdivision, Novaliches, Caloocan City, when accused-appellant Sonny Buendia arrived. Accused-appellant proceeded to the kitchen, got a knife, and with it ordered Maribel to get up. He held her hand and dragged Maribel inside a room. He then removed her shorts and panties, raised her T-shirt, and pushed her down on a low wooden bed ("papag").  Maribel pleaded with him, saying, "Hwag, natatakot ako sa iyo!" (Don't, I'm afraid of you!), but accused-appellant ordered her not to make any noise or he would harm her. He placed himself on top of Maribel, and lowered his pants and briefs down to his knees. Maribel resisted accused-appellant's advances, but the latter proved to be stronger. Accused-appellant kissed her on the lips and cheeks and spread her legs apart. He then held his penis and inserted it into her vagina. Maribel felt pain as accused-appellant had sexual intercourse with her for about two minutes. When accused-appellant was through, Maribel noticed a white and thick substance coming out of his organ. Accused-appellant left, but not before warning her not to tell anybody about the incident or else he would kill her and her family. Maribel could not do anything but cry.  She told no one of the incident because she was afraid of the threats made by the accused.^[4]

Two months later, in November of the same year, she was again raped by accused-appellant.  According to Maribel, at about 11 o'clock in the morning, she was asked by her mother to get a bowl from her sister Remy's house, located about 50 meters from their house. When she reached the house, only Remy's children, aged five and three years old, were there playing in the backyard.

While Maribel was in the kitchen of the house, accused-appellant Sonny Buendia, whose house was beside that of Remy, came. He locked the door behind him and ordered Maribel not to shout. When she asked him what he wanted, accused-appellant took a small knife, poked it at her waist, and forced her to go upstairs. As before, accused-appellant began kissing her on the lips and the cheeks. He lowered her shorts and panties, and then his own shorts and briefs down to his knees. Accused-appellant  lifted Maribel and pushed her to the floor. She pleaded with him, saying, "Hwag po!" (Please, don't!), but he did not heed her.^[5] Accused-appellant put his body on top of her, pinned her hands, and spread her legs, as complainant continued pleading, "Hwag, natatakot ako!" (Don't, I'm afraid!) Maribel struggled to free herself, but accused-appellant succeeded in having sexual intercourse with her. Maribel said she felt pain in her vagina. Maribel claimed she could not shout even if she wanted to because she was afraid accused-appellant  might harm her. When he had finished with her, accused-appellant warned her not to report the incident to anyone or he would kill all of them and then left.

On March 21, 1993, no longer able to contain her fear as accused-appellant kept following her around with evident evil desire, Maribel finally asked her classmate, Florida Tadeña, to help her go to the house of their former classmate, Rex Babuyog, who was a member of the Bantay Bayan, so that they could seek assistance from the authorities. Bantay Bayan is a group of male residents living in their area organized for the purpose of keeping peace in their community and is an accredited auxiliary of the Caloocan City PNP. Upon Maribel's complaint, members of the Bantay Bayan arrested accused-appellant and turned him over to the Caloocan City Police Sub-Station at Urduja, Caloocan City.^[6]

Florida Tadeña corroborated Maribel's testimony. According to her, at about 3 o'clock in the afternoon of March 21, 1993,  Maribel went to her house, crying. She appeared to be frightened. ("Takot na takot at umiiyak.") Florida said Maribel told her that she (Maribel) had been raped twice by her brother-in-law, accused-appellant Sonny Buendia. Florida therefore accompanied Maribel to the house of Rex Babuyog, their former high school classmate and a member of the Bantay Bayan, who in turn took them to Sonny Alberca, Chief and Organizer of the Bantay Bayan. The party went to the house of accused-appellant, but the latter was not in his house when they arrived thereat. Hence, the three proceeded to the house of Maribel and told her parents about the incidents that befell their daughter.

Upon learning what had happened, Maribel's mother fainted, while her father raged. On the other hand, Imelda, the common law wife of accused-appellant, pulled Maribel's hair and slapped her to reproach her for not telling them about the incidents earlier.

In the evening of the same day, Bantay Bayan members went back to accused-appellant Sonny Buendia's house and finally arrested him.^[7] Rex Babuyog,^[8] Sonny Alberca^[9] and Alberto Caliwag^[10] corroborated the testimony of Florida Tadeña.

PO3 Dicoroso Domingo, Police Investigator of the Caloocan City Police Station II, testified that at around 7 o'clock in the evening of March 21, 1993, he conducted an investigation on the charges against accused-appellant.  He said that when accused-appellant was presented to Maribel Caliwag, the latter positively identified the former as the person who had raped her. According to PO3 Domingo, he took the statement of the complainant^[11] and prepared the letter-request addressed to the NBI for the examination of complainant^[12] and the Referral Slip^[13] addressed to the City Prosecutor.^[14]

Dr. Louella Nario, medico-legal officer of the NBI, testified that she conducted a physical and genital examination on Maribel Caliwag and recorded her findings in Living Case Report No. MG-93-253,^[15] the pertinent portions of which state:

LIVING CASE REPORT NO. MG-93-253

GENERAL PHYSICAL EXAMINATION:

Height: 150.0 cms.                                                                  Weight: 43.5 Kgs.

Normally developed, fairly nourished, conscious, coherent, ambulatory subject.  Breasts, developed, hemispherical, doughy. Areolae, brown, 3.5 cms. in diameter. Nipples brown, protruding, 0.8 cm. in diameter.  No extragenital physical injuries noted.

GENITAL EXAMINATION:

Pubic hair, fully grown, moderate. Labia majora and minora, coaptated. Fourchette, lax. Vestibular mucosa, pinkish.  Hymen, moderately thick, moderately tall, intact. Hymenal orifice, annular, admits a tube, 2.0 cms. in diameter with moderate resistance.  Vaginal walls, tight.  Rugosities, prominent.

CONCLUSIONS:

1. No evident sign of extragenital physical injuries noted on the body of the subject at the time of examination.
   
   
2. Hymen, intact and its orifice small (2.0 cms in diameter) as to preclude complete penetration by an average-sized adult Filipino male organ in full erection without producing any genital injury.

For the defense, accused-appellant Sonny Buendia testified in his own behalf.  He said that Maribel Caliwag is his sister-in-law because she is the sister of his wife Imelda.  He denied having raped her. He claimed that, in the month of September 1992, when the first rape was allegedly committed, he was working at the Marble Supply Company in Sauyo, Novaliches, Quezon City. This place, according to him, was very far from his house and would take two jeepney rides to reach from his house.  He said he worked there six days a week, from 8 o'clock in the morning up to 5 o'clock in the afternoon.  He left home for work at 6 o'clock in the morning and arrived home from work at about 8 o'clock in the evening, so that it was impossible for him to have committed the crime at 4 o'clock in the afternoon. Buendia further claims that he often went to the cockpit on Sundays from 9 o'clock in the morning up to 8 o'clock in the evening so that he could likewise not have committed the crime on this day.  In the month of November 1992, when the second incident allegedly took place, Buendia claimed he was working at the same Marble Supply Company. On Sundays, he was likewise at the cockpit from 9 o'clock in the morning up to 8 o'clock at night.

Buendia said that he talked to his father-in-law sometime in 1996, after the criminal case against him had been filed, and that he asked the latter if it was possible to drop the rape charges against him.  His father-in-law  allegedly asked for P50,000.00 as a condition for settling the cases against him, but accused-appellant said that he could afford to pay only P10,000.00.^[16]

On August 28, 2000, the trial court rendered its decision, the dispositive portion of which reads:

WHEREFORE, the prosecution having proven the guilt of the accused beyond reasonable doubt, the Court finds the accused SONNY BUENDIA y BENJAMIN guilty as principal of TWO (2) COUNTS of rape as charged in Criminal Cases Nos. C-42738 and C-42739, and there being no mitigating nor aggravating circumstances that attended the commission of the crime, hereby sentences him to suffer for each count the penalty of RECLUSION PERPETUA, with all the accessory penalties prescribed by law.  He is further sentenced to pay to the complainant MARIBEL CALIWAG y GARCIA the amount of P50,000.00 as indemnity and P50,000.00 as moral damages in each case, or a total of P200,000.00 and to pay the costs.

SO ORDERED.^[17]

Hence, this appeal.

I.  Accused-appellant contends that the trial court erred (a) in giving credence to the testimony of private complainant which allegedly is contrary to human experience; (b) in not taking into account that private complainant did not put up any resistance when accused-appellant allegedly made advances at her; (c) in not considering the delay of six months before private complainant reported the crime; and (d) in disregarding the presumption of innocence in his favor.^[18]

Accused-appellant argues that the testimony of complainant Maribel Caliwag is incredible and contrary to human experience. Accused-appellant asserts that if the victim's panties and shorts had been pulled down to her knees, it was impossible for her to climb the wooden bed or "papag," in the same way that he could not have climbed  the same to perform the sexual act because he too was supposed to have lowered his shorts and briefs down to his knees. Accused-appellant likewise contends that Maribel's testimony that some white substance from accused-appellant's sex organ fell on her panties is also incredible since her panties had been drawn down to her knees. Furthermore, accused-appellant asserts that it was not natural for Maribel to have seen the former everyday after the rape incident without showing fear or anger at what he had allegedly done to her.^[19]

These contentions are without merit.

A.  Maribel never said that her panties and shorts were wrapped around her knees as were accused-appellant's pants and briefs so as to make it impossible for both of them to have climbed the wooden bed ("papag") where he had sexual intercourse with her.  What she said was that accused-appellant removed her shorts and panties to her knees, laid her down on the "papag," and spread her legs in order to insert his penis into her vagina. Maribel's testimony is as follows:

Q	What did the accused do after you had entered the room?
A	He removed my shorts and my panties.
Q	By the way, what were you wearing at that time?
A	Shorts and panties.
Q	How about the upper part of your body?
A	T-shirt.
Q	Who removed your shorts and panties?
A	Sonny Buendia.
Q	When he removed your shorts and panties, what was your position?
A	I was standing.
Q	How about your T-shirt?
A	He just raised it.
Q	What happened after removing your shorts and panties and raising your T-shirt?
A	He laid me down on the "papag."
Q	This "papag" is inside the room?
A	Yes.
Q	How did the accused make you lie on the "papag"?
A	He pushed me.
	. . . .
Q	By the way, what was the accused wearing at that time?
A	Pants.
Q	What kind of pants?
A	Maong pants.
Q	How about the upper part of his body?
A	T-shirt.
Q	When you said he placed his body on top of you, what did he do with his pants?
A	He removed it.
Q	Did the accused remove his pants completely?
A	No.
Q	How did the accused remove his pants?
A	He just lowered it up to his knees.
Q	How about his briefs?
A	He did the same.
	. . . .
Q	Could you tell us how [was] the accused  able to insert his sex organ to your sex organ?
A	He held it.
Q	How about your position at that time, what was your position?
A	My legs were spread apart.
Q	How about the legs of the accused?
A	They were between my legs.
Q	What did you feel when the accused you said was able to insert his sex organ to your sex organ?
A	It was painful.
Q	When the sex organ of the accused was inserted in your sex organ, what motion did he make?
A	He was making a push and pull movement.

B.  Contrary to accused-appellant's claim, Maribel did not say that the white substance she saw coming out of accused-appellant's organ directly dropped on her panties which were supposedly lowered to her knees. Although she seems to have said that after seeing a white substance come out of accused-appellant's organ she also found the same on her panties which were then lowered down to her knees, what she in fact meant was that after putting on her panties she noticed it smeared with the white substance coming from her own organ.^[20] Thus, she testified as regards the alleged first rape:

Q	When the accused removed his sex organ from your sex organ, according to you about two (2) minutes, was there something that came out of his sex organ?
A	Yes.
Q	What was that came out from the sex organ of the accused?
A	Something white and thick.
Q	Where did you see that something white and thick?
A	On my panties.
Q	Where were your panties then?
A	On my knees.
Q	After two minutes, what did you do when the accused left warning you not to tell anybody about what happened or what he did to you because if you will do that, he will kill you and the members of your family?
A	None, I just cried.
Q	What else after you cried?
A	None.
Q	When the accused had already left, what did you do?
A	I went out of the room and went to the sala.
Q	Before going to the sala, what did you do?  Did you put on your shorts and panties?
A	Yes.
Q	What happened when you put on your panties?  What did you see on your panties?
A	Something white and thick.
Q	You said that after you put on your panties and shorts, you saw that white thick substance, did you examine for yourself what was that white and thick substance coming out of your sex organ and dropping on your panties?
A	Yes.
Q	What did you find out?
A	Only that white and thick.[21]

As regards the alleged second rape, she explained that the whitish substance came from her:

Q	After you stood up and have on your panties, what did you see when you put on your panties?
A	There was something whitish like mucus, mam.
Q	And did you know where that like mucus came from where?
A	From me, mam.[22]

C. Accused-appellant claims that Maribel did not offer any resistance.^[23] But physical resistance is not the sole test to determine whether or not a woman involuntarily succumbed to the lust of the accused.^[24] In this case, Maribel resisted although perhaps less feebly than the usual resistance shown by normal adult women, but this was more due to fear.  She said that, on both occasions when she was raped, she was threatened with a knife if she did not yield to accused-appellant's desires.

Nor does the failure of Maribel to immediately report the rape to the immediate members of her family or to the police authorities detract from her credibility. She was threatened with harm if she told anyone what accused-appellant had done to her. But on March 21, 1993, she finally summoned enough courage to ask the authorities for assistance because she believed that she would be molested again by accused-appellant. We have upheld convictions in cases where the rape incidents were not reported until after more than four months.^[25] In People v. Bugarin,^[26] this Court held:

Neither does the delay in making a criminal accusation impair the credibility of a witness if such delay is satisfactorily explained.  In  People v. Coloma, where the complainant was also only 13 years old when first molested by her father, the Court adverted to the father's moral and physical control over the young complainant in explaining the delay of eight years before the complaint against her father was made.  In this case, Maryjane must have been overwhelmed by fear and confusion, and shocked that her own father had defiled her.  After all, she had been very close to him. She also testified that she was afraid to tell her mother because the latter might be angered, so that she finally confided to her aunt.

Moreover, the moral ascendancy of accused-appellant over Maribel in this case should be taken into account. Accused-appellant is not only the common law husband of Maribel's sister. Maribel also received money from him on many occasions.

II.  But while there is no merit in the assignment of errors of accused-appellant, there are some aspects of the prosecution evidence which create doubts about complainant's claim that she had been raped.

A.  Complainant claimed that she had been twice raped by accused-appellant, in September 1992 and again in November of that year. She said that on both occasions, accused-appellant "inserted his organ to my sex organ";^[27] that the result was "painful";^[28] that accused-appellant made "a push and pull movement" for "about two minutes";^[29] and that she saw a "white and thick substance" coming out of accused-appellant's penis as it was removed from her organ.^[30] However, Dr. Louella Nario, the NBI medico-legal officer who examined complainant and who testified for the prosecution, made some findings and expressed some conclusions during her testimony in court which render complainant's claim doubtful.

Dr. Nario's certificate stated that the "hymen [was] intact and its orifice small (2.0 cms. in diameter) as to preclude complete penetration by an average-sized adult Filipino male organ in full erection without producing any genital injury."  Explaining her finding, Dr. Nario said that she found no hymenal laceration and that the hymenal orifice, 2 centimeters in diameter, was the normal size of the orifice, without laceration. There was not even evidence of partial penetration. Dr. Nario was asked if these could be because of the time lapse of five months between the last alleged rape of complainant and the date of the examination, but the medico-legal officer said it was not.  She said:

ACP REYES:
	Hymenal orifice, annular, admits a tube, 2.0 cms. in diameter with moderate resistance, what do you mean by that?
A	We inserted a tube in the hymenal orifice and we found it is a 2.0 cm. in diameter, mam.
Q	What is the normal or ordinary hymenal orifice without laceration?
A	Usually it is two (2) centimeters or below, mam.
Q	Two (2) centimeters or below two (2) centimeters, mam.  In your conclusion doctor, the findings or conclusions states that "(1) No evident sign or extragenital physical injuries noted on the body of the subject at the time of examination."  Now doctor the examination was conducted on March 22, 1993, and the commission was on November 1992, could it be possible that you did not find any physical injuries on the body of the victim because of the length of time, from the time of the commission up to the time of the examination?
A	Well, it is possible except if the laceration are so serious to be present at the time of the examination, mam.
Q	Doctor, so it is possible if the examination was conducted earlier you could find injury on the subject?
A	Yes, if the subject was examined three (3) to four (4) weeks after laceration was inflicted, mam.
Q	Number 2, "Hymen, intact and its orifice small (2.0 centimeters in diameter) as to preclude complete penetration by an average-sized, adult, Filipino, male organ in full erection without producing any genital injury."  Now, doctor could it be that there was a partial penetration?
A	If there was any partial penetration on the size of the hymenal orifice it could be bigger than two cms., mam.
Q	Even if there is a long gap from the commission up to the time of the examination?
A	Yes, mam.
Q	Another term in this kind as to preclude complete penetration, in your opinion doctor, could it be very slight penetration of the sex organ, as to the touching of labia minora and majora?
A	Yes, it could be possible that there was an abrasion if she was examined earlier, or few days after the alleged date of commission, mam.
Q	So in this case, there will be a slight touching of the penis or vagina of the victim?
A	Not the vagina, but the labia majora or minora or vestibule, mam.[31]

To be sure, full penetration of the female organ is not required to sustain a conviction for rape because the mere entry of the penis into the lips of the female organ, even without rupture or laceration of the hymen, is sufficient.^[32] But the question here is not whether the alleged rape was consummated or only attempted. The question is whether the alleged rape took place at all. Complainant claimed that accused-appellant had in fact inserted his penis into the vagina and that for two minutes he did the sexual act by push and pull motion so much as a result of which she suffered great pain. This, however, is difficult to believe considering the medical finding that her hymenal orifice was only 2 centimeters in diameter, which is the normal size of an orifice "without injury," and that its size was so small "as to preclude complete penetration by an average-sized adult Filipino male organ in full erection without producing any genital injury." The finding of the medico-legal officer puts in grave doubt complainant's claim that accused-appellant raped her, each time fully penetrating her.

B.  Complainant described the manner by which she was raped by accused-appellant in exactly the same fashion on each of the two occasions she was allegedly molested:  accused-appellant started by kissing her on the lips and the cheeks, then lowered her panties and her shorts with one hand and raised her T-shirt with the other; then lowered his body on her while holding her hands; then spread her legs; and then inserted his penis into her vagina and performed the sexual act.  Except for the place of the crime, the alleged rapes were committed in exactly the same way.

C.  Although the molestations allegedly occurred just four months to the date she made a report to the authorities, complainant could not give the dates they happened.  All she could say was that the first took place in September, while the second one in November.  She could not even approximate the alleged dates when the rape incidents took place.  While the time of commission is not an essential element of rape, complainant's inability to give the dates on which she was allegedly raped puts her credibility in question. She was already 16 years old when she was allegedly raped, yet she could not remember when it was she was abused.  For a 16-year old lass just coming to womanhood, such a harrowing experience as what complainant was supposed to have gone through could not have failed to make an indelible impression on her mind.

In short, the evidence for the prosecution fails to satisfy the quantum of evidence required for conviction in criminal cases, namely, proof beyond reasonable doubt.

WHEREFORE, the decision of the Regional Trial Court, Branch 130, Caloocan City, finding accused-appellant guilty of two counts of rape, is REVERSED and accused-appellant is hereby ACQUITTED.

The Director of Prisons is hereby directed to forthwith cause the release of accused-appellant unless the latter is being lawfully held for another cause and to inform the Court accordingly within ten (10) days from notice.

SO ORDERED.

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

---

^[1] Per Judge Jaime T . Hamoy.

^[2] Exh. C.

^[3] Exh. B.

^[4] TSN, pp. 10, 13-22, Feb. 8, 1995.

^[5] TSN, pp. 22-32, Feb. 8, 1995.

^[6] TSN, pp. 2-14, March 27, 1995.

^[7] TSN, pp. 2-13, March 11, 1997.

^[8] TSN, pp. 14-29, March 11, 1997.

^[9] TSN, pp. 2-16, Feb. 10, 1998.

^[10] TSN, pp. 8-19, June 13, 1995.

^[11] Exh. D.

^[12] Exh. E.

^[13] Exh. F.

^[14] TSN, pp. 2-13, Oct. 30, 1996.

^[15] Exh. H; Records, p. 129.

^[16] TSN, pp. 2-17, June 16, 1998.

^[17] Records, p. 167.

^[18] Accused-Appellant's Brief, p. 3; Rollo, p. 55.

^[19] Id., pp. 3-4; id., pp. 55-56.

^[20] TSN, pp. 19-21, Feb. 8, 1995.

^[21] TSN, pp. 18-20, Feb. 8, 1995 (emphasis added).

^[22] TSN, pp. 7-8, March 27, 1995 (emphasis added).

^[23] Accused-Appellant's Brief, pp. 4-5; Rollo, pp. 56-57.

^[24] People v. Canonigo, 337 SCRA 310 (2000).

^[25] See People v. Cabresos, 244 SCRA 362 (1995); People v. Adora, 275 SCRA 441 (1997).

^[26] 273 SCRA 384, 398 (1997)

^[27] TSN, pp. 15-21, Feb. 8, 1995; TSN, pp. 3-7, March 27, 1995.

^[28] Id.

^[29] Id.

^[30] Id.

^[31] TSN, pp. 9-11, Feb. 17, 1997 (emphasis added).

^[32] See People v. Gagto, 253 SCRA 455 (1996).