At 4:00 o'clock in the afternoon of June 10, 1997, Belinda Lampas arrived home from work to find her daughter Jennifer, said to be then five years old, limping and holding her private part. "Bakit, anak?" she asked, and after dressing Jennifer up and seeing her panty bloodied, Jennifer narrated that their neighbor, Kuya Jerry, brought her to the nearby house of his sister, made her lie down and undressed her. Jennifer went on to tell that Jerry "kantot" her.^[1]

Jennifer would more than two months later testify in court that she was earlier playing in front of their house at Road 4, Dupax, Diliman Quezon City that afternoon of June 10, 1997 when the neighbor she referred to as Kuya Jerry, Jerry Cantuba (accused-appellant), approached her, took her to his sister's house nearby which drew her to cry and scream for help, undressed her after which he undressed himself and that he touched her, "[n]ot just [with] his hands but also another part of his body," she pointing to the male private part which he inserted in her vagina.^[2] The prosecution would later present the blood stained panty,^[3] dress,^[4] and shorts^[5] of Jennifer.

Belinda lost no time in going to the house of the purok leader, Ynigo, who was not around, however. Ynigo's daughter thereupon accompanied her and Jennifer to Camp Crame that evening of June 10, 1997^[6] where the latter was medically examined by Dr. Manuel Reyes, Medico-Legal Officer of the Philippine National Police Crime Laboratory Service. Upon parting Jennifer's labia majora and labia minora, the doctor found a "congested vestibule and posterior fourchette and an elastic, fleshy-type and markedly congested hymen with deep fresh bleeding lacerations at 2 and 10 o'clock positions." The doctor further found that the "external vaginal orifice admit[ted] [the] tip of [his] smallest finger." Specifically with respect to the fresh lacerations, the doctor inferred that they were caused by the "[f]orcible insertion of a hard blunt object" such as an erect penis, consistent with sexual intercourse which occurred less than 24 hours from the time of the examination. He thus concluded that his findings were "consistent with recent loss of virginity".

Still later on the same evening of June 10, 1997, Belinda sought the assistance of one Dominador, a "BSDO in Balara," who "arrested" accused-appellant and brought him to Precinct 6 in Old Balara, Quezon City^[7] where she executed her sworn statement^[8] and assisted Jennifer in filing a complaint^[9] against him.

Accused-appellant was accordingly charged by Jennifer with rape before the Quezon City Regional Trial Court (RTC) allegedly committed as follows:

That on or about the 10^th day of June 1997 in Quezon City, Philippines, the said accused by means of force and intimidation, to wit: by then and there wilfully, unlawfully and feloniously undress JENNIFER LAMPAY Y AVILA, a minor, 5 years of age and thereafter have carnal knowledge with the undersigned complainant against her will and without her consent.^[10]

When arraigned, accused-appellant pleaded not guilty. Trial ensued thereafter.

Belinda, and Dr. Reyes testified to the foregoing account as did Jennifer as reflected earlier. In addition, the prosecution presented Elvira Valismo, a clinical psychologist at the Research and Study Center for Children who examined Jennifer about two weeks after the alleged abuse, and who declared that Jennifer was not communicative except with other children and was especially withdrawn from adult males. Elvira further declared that when Jennifer was confronted with questions regarding the incident, she would turn silent, and that gauged from the Wexler Intelligence Skills for Children, Jennifer was not functioning at the maximum level of her intelligence. Elvira thus concluded that Jennifer suffered from depression and trauma as a result of the abuse. ^[11]

Accused-appellant, 36 at the time he testified on direct examination on February 3, 1998, a construction worker and a resident of 34 Dupax Street, Diliman, Quezon City gave the following version:

At 10:00 o'clock in the morning of June 10, 1997, on seeing that his neighbor of eighteen years Avelino Magno (Magno), a garbage collector, was working by himself, "making hollow blocks and plastering the walls" of the house of a neighbor-waiter Ricky Bautista at 43 Dupax Street, he decided to lend Magno a hand, albeit he (accused-appellant) did not get paid for it.

Accused-appellant and Magno later took lunch at past noon, and an hour or so later they resumed their work. At 4:00 o'clock in the afternoon, Magno went home while he proceeded to the nearby house of Zaldy Salas (Zaldy) where the two watched television up to 6:00 in the evening. He then repaired to his uncle's house at 34 Dupax St. where he resided, about ten meters away from Jennifer's.^[12]

Magno corroborated accused-appellant's testimony. He claimed, however, that after work was done in the afternoon, he and accused-appellant both went to the house of Zaldy where they watched television.^[13]

Accused-appellant foisted the theory of mistaken identity, alluding to one Jerry Teves as the true perpetrator of the crime. By accused-appellant's account, Teves, whom Jennifer also called "Kuya Jerry," is a small man past 20 years, of medium build, good looking, and a cousin of Jennifer's father who used to live with them.^[14]

Accused-appellant's brother, Joffrey Cantuba, related that he shares a twenty four square meter two storey house at Road 44, Dupax St. with his wife Celestina and four children, his brother Jay and his wife and their four children, and his sister Rosalie and her husband and their five children.

Joffrey also related that their other sister, Rosemarie, died on June 2, 1997 and was interred on June 8, 1997, two days before the incident in question. The laundry having accumulated on account of the family tragedy, his wife Celestina and his brother's wife spent the whole day of June 10, 1997 washing clothes just outside their house, along the street. All the time that he fetched water for them from 9:00 o'clock in the morning until 3:30 or 4:00 o'clock in the afternoon, he did not notice Jerry enter their house.^[15]

Joffrey's wife Celestina declared on the witness stand that on June 10, 1997, she was washing clothes near the entrance of their house from morning until afternoon during which she never saw his brother-in-law- accused-appellant or Jennifer.^[16]

On rebuttal, Edna Bianes, a resident of 75 Dupax Street, Diliman, Quezon City, testified that from 9:30 in the morning to 3:30 in the afternoon of the day in question, she was washing clothes with Celestina near the artesian well.

Also on rebuttal, Jennifer affirmed that it was accused-appellant, and not Jerry "Teves" (whose real surname is "Obregon"), who molested her.^[17]

On January 13, 1999, Branch 76 of the Quezon City RTC rendered judgment finding accused-appellant guilty of rape and sentencing him to suffer the death penalty:

WHEREFORE, finding the accused guilty beyond reasonable doubt of rape described and penalized under ARTICLE 335 of the Revised Penal Code as amended by Republic Act 7659, the court hereby imposes the death penalty on the accused Jerry Cantuba. He is also ordered to indemnify the offended party in the amount of P50,000.00 as moral damages and to pay the costs.

SO ORDERED.^[18]

Accused-appellant now assigns the following errors on the part of the trial court:

I

THE TRIAL COURT ERRED IN FINDING ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.

II

EVEN ASSUMING THAT APPELLANT IS TRULY GUILTY OF THE CRIME OF RAPE, NONETHELESS, THE TRIAL COURT ERRED IN IMPOSING UPON HIM THE SUPREME PENALTY OF DEATH.^[19]

The Court entertains no doubt that Jennifer was a victim of rape. Her candid testimony and that of her mother, the medico-legal findings of the doctor which are reflected in his Initial Laboratory Report^[20] and Medico-Legal Report No. M-2063-9,^[21] and the object evidence establish beyond reasonable doubt that she was raped.

Accused-appellant maintains his innocence, however. He points out that the house where Jennifer was allegedly raped "swarmed with occupants" consisting of three couples and their children. Were the claim of rape true, he submits, the incident would have caught someone else's attention. He adds that Jennifer, confronted by the trauma of the incident, could have mistaken him for her other Kuya Gerry. Finally, he maintains that his alibi was amply corroborated by Magno.

Accused-appellant's appeal is bereft of merit.

There is no proof that the house where the offense was committed was indeed swarming with people at the time of its commission. In any case, the Court has held that rapists are not deterred from committing their odious act by the presence of people nearby or the members of the family;^[22] that lust does not respect time or place; and that rape is not only committed in seclusion.^[23]

And Jennifer was on direct examination certain that it was accused-appellant, not the other Kuya Gerry, who molested her:

Q.   Jennifer, you mentioned that last time that you know a certain Jerry who is not the Jerry Cantuba in the case.

Yes, maam.

In this Jerry that you said you know, the same person as Jerry Cantuba?

No, maam.

Which of the Jerry touched you and raped you?

x x x

A     Jerry Cantuba.

ATTY. MORALES:

Q    Is this Jerry Cantuba the same Jerry Cantuba you earlier pointed to? Is he the same one in the courtroom today?

A     Yes, maam.^[24]

Any nagging doubts on the true identity of the rapist were laid to rest by Jennifer when on rebuttal she declared:

Q    Jennifer, you mentioned the last time that you talked to the Judge and the people here that a certain Jerry Cantuba molested you, is that correct?

A     Yes, maam.

Q    Now, how many persons named Jerry do you know?

A     Two.

Q    Are these two persons named Jerry in the courtroom today?

A     Yes.

Q    Would you like to show us these two persons named Jerry?

A     Yes.

ATTY. MORALES:

Witness pointing to Jerry Cantuba and a person named Jerry Obregon.

Q    Jennifer, do you know the family name of the other Jerry which is not Jerry Cantuba?

A     No, maam.

Q    Now, Jennifer, which of these two Jerries molested you?

A     Jerry Cantuba.

Q    And who is Jerry Cantuba again, which one?

A     (Witness pointing to Jerry Cantuba)

ATTY. MORALES:

That will be all, your honor.^[25]

The alleged corroboration by Magno of accused-appellant's testimony with respect to accused-appellant's whereabouts at 4:00 o'clock in the afternoon of June 10, 1967 fails. For accused-appellant claimed that he proceeded to the house of Zaldy where he watched television while Magno left for home, whereas Magno claimed that the two of them proceeded to Zaldy's house and both watched television.

The trial court thus correctly rejected not only accused-appellant's theory of mistaken identity but his alibi as well, giving great weight to Jennifer's heartrending testimony:

The Court listened carefully to her story told in brief, sometimes unfinished sentences, the child evading the sight of the accused, prompting us to hold the trial in chambers, with the accused just by the door. It was a candid moment of a very young girl's demeanors: she would lower her face, as if in shame, then would stop answering questions as if in pain. It seemed to the court that every recollection of the bits and pieces of the incident inflicted upon her more hurt and sufferings that sear whatever is left of her young life.

It is difficult to imagine that this young girl, already deprived of her childhood and purity; bruised by her traumatic experience would falsely point to the accused as her tormentor, if it were not the truth. The attempt of the accused to foist doubt into the mind of the court by suggesting that it might be the other Jerry (Teves/Obregon) who did it, proved insensible as the little girl stuck to her earlier declaration pointing to Jerry Cantuba as the perpetrator of the rape. And the court believed her. The court gives her narration full faith and credence and rejects the alibi offered by the accused.^[26]

In People v. Marquez,^[27] this Court ruled:

All told, the proffered alibi of accused-appellant can not stand against the positive identification by the private complainant that he is the culprit. Basic is the rule that alibi which is easy to concoct can not prevail over the positive identification; what is more, appellant utterly failed to prove that it was physically impossible for him to be at the scene of the crime at the approximate time of its commission. Consequently, accused-appellant's defense of alibi can not prosper. Indeed the revelation of an innocent child whose chastity was abused deserves full credit, as the willingness of complainant to face police investigation and to undergo the trouble and humiliation of a public trial is eloquent testimony of the truth of her complaint. Stated differently, it is most improbable for a five-year old girl of tender years, so innocent and so guileless as the herein offended party, to brazenly impute a crime so serious as rape to any man if it were not true.

Accused-appellant nevertheless argues that, even assuming that he is guilty of rape, since the age of Jennifer was not sufficiently established, the imposition of the death penalty was incorrect.

We agree.

Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659,^[28] states:

Article 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

3. When the woman is under twelve years of age x x x.

The crime of rape shall be punished by reclusion perpetua.

x x x

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

x x x

4. when the victim is . . . a child below seven (7) years old.

x x x

Just recently, this Court, in People of the Philippines v. Manuel Pruna y Ramirez or Erman Pruna y Ramirez,^[29] established a set of "guidelines in appreciating age as an element of the crime or as a qualifying circumstance," to wit:

1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:

a.      If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old;

b.      If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years;

c.       If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years.

4. In the absence of a certificate of live birth, authentic document or the testimony of the victim's mother or relative concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused.

5.             It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.

6. The trial court should always make a categorical finding as to the age of the victim.

Applying the foregoing guidelines in the Pruna case, this Court held that therein accused-appellant could only be sentenced to suffer the penalty of reclusion perpetua since:

In the present case, no birth certificate or any similar authentic document, such as a baptismal certificate of LIZETTE, was presented to prove her age. x x x.

However, the Medico-Legal Report relied upon by the trial court does not in any way prove the age of LIZETTE, for there is nothing therein which even mentions her age. Only testimonial evidence was presented to establish LIZETTE's age. Her mother, Jacqueline, testified [that the victim was three years old at the time of the commission of the crime].

x x x

Likewise, LIZETTE testified on 20 November 1996, or almost two years after the incident, that she was 5 years old. However, when the defense counsel asked her how old she was on 3 January 1995, or at the time of the rape, she replied that she was 5 years old. Upon further question as to the date she was born, she could not answer.

For PRUNA to be convicted of rape in its qualified form and meted the supreme penalty of death, it must be established with certainty that LIZETTE was below 7 years old at the time of the commission of the crime. It must be stressed that the severity of the death penalty, especially its irreversible and final nature once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence.

In view of the uncertainty of LIZETTE's exact age, corroborative evidence such as her birth certificate, baptismal certificate or any other authentic document should be introduced in evidence in order that the qualifying circumstance of "below seven (7) years old" is appreciated against the appellant. The lack of objection on the part of the defense as to her age did not excuse the prosecution from discharging its burden. That the defense invoked LIZETTE's tender age for purposes of questioning her competency to testify is not necessarily an admission that she was below 7 years of age when PRUNA raped her on 3 January 1995. Such being the case, PRUNA cannot be convicted of qualified rape, and hence the death penalty cannot be imposed on him.

However, conformably with no. 3 (b) of the foregoing guidelines, the testimony of LIZETTE's mother that she was 3 years old at the time of the commission of the crime is sufficient for purposes of holding PRUNA liable for statutory rape, or rape of a girl below 12 years of age. Under the second paragraph of Article 335, as amended by R.A. No. 7659, in relation to no. 3 of the first paragraph thereof, having carnal knowledge of a woman under 12 years of age is punishable by reclusion perpetua. Thus, the penalty to be imposed on PRUNA should be reclusion perpetua, and not death penalty.

In the case at bar, the only evidence of the age of Jennifer is her testimony and that of her mother Belinda. Both testified that Jennifer was five years old. Notably, the questions did not refer specifically to Jennifer's age at the time of the rape on June 10, 1997. When she testified on July 23, 1997, Belinda stated:

Q    How old is your daughter Jennifer?

A     Five years old, sir.^[30]

In her testimony of August 27, 1997, Jennifer declared:

Q    How old are you?

A     Five.^[31]

Conformably with Pruna, accused-appellant can be held liable for statutory rape but the death penalty cannot be imposed upon him.

In accordance with jurisprudence, the amount of P50,000.00 as civil indemnity is awarded to the offended party, apart from the amount of P50,000.00 as moral damages.^[32]

Finally, the Court notes that as recorded in the transcript of stenographic notes, Jennifer identified herself as "JENNIFER LAMPAS,"^[33] and her mother Belinda's surname appear there too as "LAMPAS."^[34] On the other hand, the complaint-information identified the offended party as "JENNIFER LAMPAY Y AVILA,"^[35] albeit the signature therein of her mother above the typewritten name Belinda Lampas y Avila, appears to read "Lampas." The discrepancy or error is undoubtedly merely typographical. Accused-appellant can be convicted under the complaint-information without affecting his substantial rights since the offended party is sufficiently identifiable.

WHEREFORE, the Decision of the Regional Trial Court of Quezon City is AFFIRMED with MODIFICATION. Accused-appellant Jerry Cantuba y Deblois is found GUILTY of simple Rape and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay the offended party, Jennifer Lampas, the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, Callejo, Sr., and Azcuna, JJ., concur.
Austria-Martinez, J., on leave.

---

^[1] TSN July 23, 1997, pp. 3 11.

^[2] TSN, August 20, 1997, pp. 2-5.

^[3] Exhibit "H"; "H-1".

^[4] Exhibit "F".

^[5] Exhibit "G".

^[6] TSN, July 23, 1997, pp. 12 14.

^[7] TSN, July 23,1997, pp. 16-19.

^[8] Exhibit "B", Records, p. 153.

^[9] Records, p. 4.

^[10] Complaint, Records, p. 151.

^[11] TSN, September 15, 1997, pp. 2-7.

^[12] TSN, February 3, 1998, pp. 3-5.

^[13] TSN, March 18, 1998, pp. 3 11.

^[14] TSN, February 3, 1998, pp. 6-7; TSN, February 24, 1998, pp. 4-5.

^[15] Id., at 5-9.

^[16] TSN, November 3, 1998, pp. 4-8.

^[17] Id., at 9-10.

^[18]

^[19]

^[20]

^[21]

^[22] People v. Sancha, 324 SCRA 646 (2000).

^[23] People v. Lapiz, 339 SCRA 655 (2000).

^[24] TSN, September 8, 1997, pp. 2 3.

^[25] TSN, November 10, 1998, pp. 9-10.

^[26] Records, pp. 146-147.

^[27] 347 SCRA 510 (2000).

^[28] an act to impose the death penalty on certain heinous crimes, amending for that purpose the Revised Penal Code, as amended, other special penal laws, and for other purposes. This was the law in force when the rape was committed on June 10, 1997. Subsequently, on October 22, 1997 the law on rape was amended by RA No. 8353 and re-numbered Articles 266-A, 266-B, 266-C and 266-D under Chapter Three, Title Eight of the Revised Penal Code (Crimes Against Persons).

^[29] G. R. No. 138471, October 10, 2002.

^[30] TSN, July 23, 1997, p. 3.

^[31] TSN, August 27, 1997, p. 2.

^[32] People vs. Veloso, 330 SCRA 602 (2000).

^[33] TSN, August 20, 1997, p. 2.

^[34] TSN, July 23, 1997, p. 2.

^[35] Records, p. 151.