This is an automatic review of the death penalty imposed by the Regional Trial Court of Davao City on ALEJO MIASCO y MARSON, for the rape of his 13-year old daughter, Juvy Miasco, allegedly committed as follows:

I. Criminal Case No. 38,465-97:

"The undersigned accuses the above-named accused of the crime of RAPE, under Article 335 of the Revised Penal Code in relation to R.A. No. 7659, otherwise known as the law on Heinous Crimes, upon the instance of JUVY MIASCO Y (B)ARIQUIT, a 13-year old minor whose affidavit is hereto attached and forms part of this information, committed as follows:

That during the period October 1996 and December 1996, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously had sexual intercourse with the offended party, his daughter, against her will.

CONTRARY TO LAW."^[1] (emphases ours)

II. Criminal Case No. 38,465-A-97:

"The undersigned accuses the above-named accused of the crime of RAPE, under Art. 335 of the Revised Penal Code in relation to R.A. No. 7659, otherwise known as the law on Heinous Crimes, upon the instance of complainant Juvy Miasco y Bariquit, a 13-year old minor, whose affidavit is hereto attached and form[s] part of this information, committed as follows:

That sometime in February 1997, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, the above-mentioned accused by means of force and intimidation did then and there wilfully, unlawfully and feloniously had sexual intercourse with the offended party, his daughter, against her will.

CONTRARY TO LAW."^[2] (emphases ours)

Accused with the assistance of counsel de officio, pled "not guilty."

The prosecution evidence came chiefly from the testimonies of the complainant, Juvy Miasco, her mother, Juliana Miasco, Dr. Prescilo Engcong, Social Worker Milagros Basmayor and SPO1 Antonio Balolong.

The Certificate of Live Birth of Juvy Bariquit Miasco (complainant) shows that she was born on December 14, 1983. She is the eighth child of spouses Juliana Bariquit and Alejo Miasco (accused).^[3]

The complainant testified that in the first week of October 1996, she and the accused harvested vegetables in their farm in Bugac, Ma-a, Davao City. After they harvested the vegetables, they went to their makeshift hut near their vegetable garden which is approximately twenty (20) meters from their house.

Once inside the hut, the accused pointed a knife at the complainant and warned her not to tell anything to her mother and siblings. He pulled down her shorts and panty. Next, he took off his shorts and forced her to lie on the floor. He placed himself on top of her and inserted his penis into her vagina. She tried to push him but to no avail. She felt pain in her stomach and cried. After the rape, she headed for home still crying. Nonetheless, she opted to languish in silence due to her father's threat that "something will happen to their family."^[4] She was 12 years and 10 months old.

The complainant's tribulation went on. She testified that in the first week of November 1996, the accused ordered her to harvest vegetables. After she had done so, the accused, armed with a knife, forcibly took her again to their makeshift hut. There, the accused undressed her, laid on top of her, and did the pumping motion. She tried to fight back but he embraced her tightly. He finally let go of her when she told him that it was enough because she was in pain.^[5] She was 12 years and 11 months old.

A week or so after the complainant had turned thirteen (13), particularly in the morning of December 23, 1996, the accused molested her again. The complainant's mother, Juliana, was then at the public market selling vegetables. The complainant declared that the accused once more ordered her to go to the vegetable garden with him. Thereafter, they went to the hut to seek refuge from the scourging sun. Inside the hut, the accused forcibly removed her underwear. She kept pushing him away but he held her hands. He sexually molested her and after satisfying his lust, he told her to go home.^[6] The complainant kept silent on the sexual abuses of the accused for her sisters' sake.^[7]

The complainant was again raped on February 5, 1997. The accused took her to their vegetable garden on the pretext that they would gather camote tops. He brought her to their hut and undressed her. He then sat on the floor and ordered her to sit on his lap. While in said position, he had carnal knowledge of the complainant.^[8]

On that occasion, Julianan happened to be in their house washing clothes. She saw the accused and her daughter going towards their hut. The hut was twenty (20) meters away from where she was. She felt something strange and followed them. What she witnessed rendered her weak and speechless. The complainant, without any panty on, was sitting on the lap of the accused. The accused, clad only in T-shirt and brief, was kissing her. Juliana slumped in front of the two and cried. Startled, the accused pushed the complainant away.^[9] The complainant hurriedly put on her shorts and ran away crying.^[10] Juliana followed her.

The accused put on his shorts and talked with Juliana. He pleaded with her not to reveal the incident to anyone. Juliana was unmoved. That same day, she reported the incident to the barangay captain.^[11]

The complainant underwent a medical examination at 6:00 p.m. of February 5, 1997 at Davao Medical Center. Dr. Prescilo Engcong found lacerations on complainant's hymen. Her orifice admitted 2 fingers.^[12]

SPO1 Antonio Balolong, the designated child and youth relation officer of Precinct No. 3, GSIS, Matina, Davao City, testified that Chief Investigator SPO4 Cloribel referred to him the complainant and her mother. He learned that the accused was at the hospital for treatment. Allegedly, he tried to kill himself by slashing his neck and stabbing his stomach.^[13] He verified the report and found the accused at Davao Medical Center. The attempt of the accused to commit suicide was recorded in the police blotter.^[14]

In the meantime, Juliana endorsed the complainant to the Davao City Social Services Development to shield her from the prying eyes of their neighbors. Complainant was temporarily placed under the care and supervision of social worker Milagros Basmayor of Balay Dangupan.

The accused denied the charges against him. He claimed that he managed to send his children to school, including the complainant, by growing and selling vegetables. He denounced the complainant as a problem child. Occasionally, he would lose his temper and beat her to discipline her. Allegedly, she did not attend her classes. After she stopped schooling, he required her to help him in harvesting their vegetables.

He declared that his marital relationship with Juliana suffered because she disliked the way he disciplined their children, particularly the complainant. Juliana would often defend their children.

He denied raping the complainant. He said that the complainant was always with her siblings whenever they would go to the hut to rest after they had harvested their vegetables.

He accused his wife of fabricating the February 5, 1997 incident. Allegedly, she did not approve of the manner he disciplined the complainant. He further accused the City Social Welfare Service Office of promising the complainant that the social welfare office would send her to school and buy her new clothes and other things if she would testify against him.

After the trial, the court a quo found the accused guilty as charged. The accused was sentenced to suffer the death penalty and ordered to indemnify the victim. The dispositive portion of the Joint Judgment^[15] of the trial court, dated November 17, 1997, reads:

"WHEREFORE, finding the evidence of prosecution more than sufficient to prove the guilt of accused, Alejo Miasco y Marson, in both above informations of the offense charged, pursuant to Sec. 11 of Republic Act 7659, amending Art. 335 of the Revised Penal Code in relation to par. 7 of said Republic Act, as well as subparagraph (1), to wit:

'When the victim is [under] 18 years of age, where the offender is [a] parent-ascendant (sic), step-parent, guardian, relative by consanguinity or affinity within third civil degree or the common law spouse or parents (sic) of the victim.'

Accordingly, in Crim. Case No. 38,465-97, accused Alejo Miasco y Marson, pursuant to Sec. 24 of Republic Act 7659, is sentenced to suffer a supreme penalty of death through lethal injection, in accordance with Republic Act No. 8176 (sic) and in the manner and procedure for its execution, in accordance to (sic) law.

In Crim. Case No. 38,465-97, accused Alejo Miasco y Marson, is sentenced to suffer the same above-penalty in Crim. Case No. 38,465-97, or death by lethal injection, in the manner and procedure for its execution pursuant to Republic Act No. 8176 (sic).

Moreover, pursuant to Art. 100 of the Revised Penal Code and in relation to Art. 104 of the same Code, covering civil indemnity, accused is furthermore ordered to pay complainant, Juvy Miasco an amount of P50,000.00, in each of the above criminal cases by way of civil indemnity and reparation of damages and/or wrong done to her, resulting in the filing of these cases which brought about her untold sufferings as well as her dishonor.

Pursuant finally to Sec. 22 of Republic Act No. 7659, par. 2 thereof, the Branch Clerk of Court of this court is ordered to immediately elevate the entire records of these cases with the Clerk of Court of the Supreme Court, Manila, for the automatic review by the Supreme Court and issuance of its own decision en banc, as the case may be.

SO ORDERED."

The case is now before us on automatic review.

It is the appellant's contention that:

"THE COURT A QUO ERRED IN CONVICTING THE ACCUSED ALEJO MIASCO OF RAPE NOTWITHSTANDING THE PROSECUTION'S FAILURE TO ESTABLISH HIS GUILT BEYOND REASONABLE DOUBT."

We affirm the judgment of conviction with modification.

The records support the findings of the trial court that the appellant raped the complainant more than once. The first rape was committed in October 1996.

She testified as follows:^[16]

"(FISCAL EVANGELIO):

Q -   Do you know the accused in this case, Juvy?

A -   Yes, sir.

Q -   Why do you know him?

A -   Because he is my father.

x x x                                                x x x                                        x x x

Q -   How old are you now, Juvy?

A -   13 years old.

x x x                                                x x x                                        x x x

Q -  Specifically during the first week of October 1996, where were you?

A -   In our farm, harvesting vegetable.

Q -   Are you referring to your farm at Bugac, Ma-a?

A -   Yes, sir.

x x x                                                x x x                                        x x x

Q -   While you and your father, Alejo Miasco were harvesting vegetable, what happened if any?

A -   After being through with harvesting our vegetable, he told me that I should go with him to our hut because we had to harvest also bananas.

Q -   Where is that hut located?

A -   A little bit farther from our house.

Q -   Who is staying in that hut if any?

A -   None.

Q -   Now, did you go with your father, as what was told?

A -   Yes, sir.

Q -   Were you able to reach the hut?

A -   Yes, sir.

Q -   When you reach in (sic) the hut with your father, what happened?

A -   He asked me to up the hut.

Q -   Did you go up the hut as instructed by your father?

A -   Yes, sir.

Q -   And what happened next?

A -   He also went up the hut.

Q -   And what happened next?

A -   He point(ed) at me a knife.

Q -   What kind of knife if you can recall?

A -   I cannot recall that (sic) kind of knife anymore.

Q -   What did he do with the knife?

A -   He poked at me.

Q -   Where?

A -   On my side.

Q -   What did he tell you if any while poking the knife to (sic) you?

A -   He told me not to tell my mother and also my brother and sister. Not to tell anyone of them.

Q -   After telling you that, what did your father do to you?

A -   He undressed me.

Q -   How did your father undressed (sic) you? Please describe.

A -   I was standing at that time. He pulled down my shorts and followed by the panty down. (sic).

Q -   After bringing down your panty, what did your father do?

A -   He also took off his shorts.

Q -   And then, what happened next?

A -   He forced me to lie down.

Q -   How did your father forced (sic) you to lie down?

A -   He held my shoulders.

Q -   What happened next?

A -   As I said, he forced me to lie down.

Q -   When you lied down, what happened?

A -   He placed himself on top of me.

Q -   On top of you. And while on top of you, what happened?

A -   He inserted his penis unto (sic) my vagina.

Q -   What did you feel when your father inserted his penis unto (sic) your vagina?

A -   I felt pain on my stomach.

Q -   For how long more or less [did] your father do that?

A -   Not so long.

Q -   While you father is (sic) inserting his penis in your vagina, what did you do?

A -   I tried to pushed (sic) him away.

Q -   What happened when you pushed him?

A -   Despite of that, he continued what he did to me.

Q -   And then?

A -   I cried.

Q -   Ultimately, were you able to extricate yourself?

A -   No.

Q-    What did you do?

A -   After raping me, I cried and went home."

It is clear that the appellant had carnal knowledge of the complainant, against her will. He employed force and intimidation that cowed her to submit to his bestial desires.

However, we cannot hold the appellant liable for the rape allegedly committed in November 1996. We note that the appellant was not charged with the said offense. The Information in Criminal Case No. 38,465-97 merely alleged that the rapes were committed "during the period October 1996 and December 1996."

As for the rape allegedly committed in December 1996, the complainant testified as follows:^[17]

"(FISCAL EVANGELIO):

x x x                                                x x x                                        x x x

Q -   At that time of December 23, 1996, sometime in the morning, you said you were again harvesting vegetable with your father. What happened?

A -   He again brought me to the hut.

Q -   What did he tell you why he brought you to the hut again?

A -   He told me that we have to go to the hut to be shaded from the sun.

Q -   Did you actually go to the hut again?

A -   Yes, sir.

Q -   While there, what happened?

A -   Again, he undressed me.

Q -   Again this time, what did your father tell you when he molested you?

A -   None.

Q -   On your part, what did you do?

A -   I kept on pushing him away.

Q -   When you pushed him, what happened?

A -   He held my hands during that time.

Q -   What happened at that time, to you?

A -   At that time, I was again helpless.

Q -   More or less, how long this time [did] your father sexually molested (sic) you?

A -   I cannot also estimate.

Q -   Were you able to extricate yourself from your father?

A -   No.

Q -   What did you do?

A -   I was helpless until he was through with me after which, he told me to go home.

Q -   Did you report this incident to your mother?

A -   No.

Q -   Why?

A -   I was afraid that my two sisters might be dragged to the trouble.

x x x                                                x x x                                        x x x

We hold that the foregoing testimony would not suffice to convict the appellant of rape under R.A. No. 7659. The complainant merely said that the appellant molested her. The prosecution did not establish what acts constituted sexual molestation. We stress that the word "molest" is not synonymous with "carnal knowledge." Even the phrase "sexual molestation" can take many forms that would not necessarily result to carnal knowledge. Consummated rape requires the introduction or touching of the male organ into the labia of the pudendum of a woman. It must be proven beyond reasonable doubt.^[18] We cannot impose the death penalty on an accused based on nebulous evidence.

The last rape was committed on February 5, 1997. The complainant testified as follows:^[19]

"(FISCAL EVANGELIO):

Q -   During the month of February 1997, do you recall any unusual incident that happened to you and your father?

A -   Yes, sir.

Q -   What was that?

A -   He again molested me.

Q -   Where?

A -   Again, in our hut.

Q -   How did your father do this thing to you in that day of February 1997?

ATTY. SANGO:

            There is no particular date.

FISCAL EVANGELIO:

Q -   She said that she was molested sometime in February, how did this happened (sic)?

A -   He again undressed me.

Q -   What happened when he undressed you?

A -   He has (sic)me sit on his lap.

Q -   And in that particular position, what happened to you?

A -   During that time, he inserted his penis in my vagina.

Q -   At that point of time, when he inserted his penis in your vagina, what happened?

A -   He continued what he was doing to me.

Q -   At that time, do you remember if your mother arrived if any (sic)?

A -   Yes, sir.

Q -   What did your mother do?

A -   He (sic) saw us in that situation.

Q -   When your mother saw you in that situation with your father, what did your mother do?

A -   She was not able to say a word.

Q -   Afterwards, what happened?

A -   She cried.

Q -   About you, what did you do?

A -   I stood up.

Q -   And then?

A -   I put on my shorts and I run (sic) away."

The appellant, however, seeks exculpation on the ground that the victim testified merely that he undressed her but did not mention that he disrobed himself during the alleged rape.

The argument lacks merit.

The fact that the complainant failed to mention whether or not the appellant completely disrobed himself during the sexual assault does not negate its commission. The absence of such testimony could be attributed to the failure of the prosecution to propound the appropriate question to the complainant. The complainant, however, categorically stated that the accused inserted his penis into her vagina.^[20] This testimony was not successfully refuted by the appellant.

The appellant also assails the complainant's credibility allegedly because she could not give straightforward answers on whether there were actual penetrations during the sexual assaults.

We are not persuaded.

The complainant was just a child when she testified in court. As observed by the trial court, she was weak and had no strong personality. She was thirteen (13) years old, but was only in the fourth grade of elementary school when most kids her age would be in high school. These ought to explain her alleged failure to give straightforward answers to some of the embarrassing questions propounded to her. Besides, we cannot expect a young victim to remember with pinpoint accuracy the details of her harrowing experience. These occasional lapses will not erode her credibility. It is also stressed that a rape victim's testimony is given greater weight when she accuses a close relative of having raped her, as in the case of a daughter against her father.

The appellant would also like us to disbelieve the complainant on the ground that she failed to immediately inform her mother of her defloration. Her silence allegedly rendered her accusations doubtful.

Again, we are not convinced. Not infrequently, young girls conceal their embarrassing ordeal, particularly when they are threatened in revealing the offense.^[21] In the case of the complainant, she was cowed by the appellant's threat that "something will happen to her family" if she would tell the rapes to anyone. The safety of her family evidently concerned her when she opted to remain silent. She feared that her other sisters would likewise be involved in the incident. Her failure to report that the appellant raped her is excusable.^[22]

On the whole, we find no cogent reason not to believe the complainant. During the trial, the defense counsel insinuated to the complainant that her mother had already forgiven the appellant and that there was even an agreement to withdraw the charges filed against him. Nonetheless, the young complainant remained steadfast in prosecuting the appellant. She testified as follows:^[23]

"(ATTY. SANGO):

Q -   Do you know that the penalty of this case if your father will be proven guilty will be death by lethal injection?

A -   Yes, sir.

Q -   But you were never told by the social welfare officer prior to your testimony now?

A -   No.

Q -   You are now residing at the house of your mother, is that correct?

A -   Yes, sir.

Q -   Were you not told by your mother that if you will continue the case against your father, your father will be penalized by death?

A -   She told me that.

x x x                                                x x x                                        x x x

Q -   Do you have an agreement with your mother to withdraw this case against your father?

A -   Yes, sir.

Q -   You are now confirming your agreement, that you will be withdrawing the case against your father?

A -   Yes, sir.

Q -   So, you are now withdrawing the case against your father?

A -   No.

x x x                                                x x x                                        x x x

(COURT):

Q -   Do you realize that you are imputing your father for (sic) a serious offense?

A -   Yes, your Honor.

Q -   And you understand that if the court will decide that your father indeed has committed this thing particularly what you have testified, a very serious penalty will be imposed against him?

A -   Yes, your Honor.

Q -   And the court would like you to understand that under the law, this (sic) kind of charges, he can be sentenced to die by lethal injection?

A -   Yes, your Honor.

Q -   Alright, you still maintain that what you have testified this morning is true and correct?

A -   Yes, your Honor.

Q -   Even if your father will be sentenced to the penalty of death, you still maintain that what you have testified this morning is true and correct?

A -   Yes, your Honor.

x x x                                                x x x                                        x x x

Q -   Now, Juvy Miasco, did your mother forced you to testify against your father?

A -   No.

Q -   And the personnel at the Balay Dangupan, particularly Mrs. Basmayor, forced you to testify against your father?

A -   No.

Q -   My point is, did they forced you to testify against your father?

A -   No.

Q -   Meaning, you filed this case and testified this morning on your own voluntary will.

A -   Yes, Your Honor."

The complainant's refusal to succumb to the family pressure to withdraw the rape charges against the appellant bolster her credibility. She would not have been unyielding if her accusations were unfounded.

The appellant next contends that the fact that his wife, Juliana, wavered in her desire to pursue his prosecution shows that he did not rape their daughter. Allegedly, it was unnatural for his wife to forgive him if she really witnessed the rape on February 5, 1997.

We are not convinced.

It is clear from the records that Juliana's hesitation to pursue the appellant's prosecution was due to the financial difficulties her family encountered as a result of his imprisonment. She testified as follows:^[24]

"QUESTIONS OF THE COURT

Q -   Mrs. Miasco, why do you say now, that you would not anymore prosecute your husband?

A -   Because I heard your Honor, that if he will be released, he will work at the farm in Calinan and our family is hard-up so that he can help us.

Q -   How many children do you have?

A -   9 children. 4 were married and the other 5 are with me.

Q -   You would mean to say that you will forget what your husband did to your daughter?

A -   Yes, your Honor.

Q -   But at present, your daughter Juvy Miasco is already with Balay Dangupan, who supports her and has custody during the pendency of this case?

A -   Precisely, that is my problem that Juvy is already with the DSWD.

Q -  You do not realize that this criminal case on the matter of Juvy Miasco, you have no control of this case unless Juvy Miasco herself will withdraw this case against her father?

A -   Yes, your Honor.

Q -   Your position, that if you get the labor of your husband to work in another land, is immaterial as far as this case is concerned?

A -   That's why I want him release(d) so that he can go to the farm and that he will not anymore return to the house, but I have nothing to do."

Significantly, Juliana never retracted her testimony in court that she saw the appellant sexually molesting their daughter on February 5, 1997. She stood by her words in court even after the defense counsel warned her that her husband would face the death penalty if she did not change her testimony. She also confirmed that her daughter had refused to withdraw the charges against the appellant."^[25]

We now come to the penalty imposed on the appellant.

Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act No. 7659 provides:

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

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

x x x            x x x      x x x

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            x x x      x x x"

The minority of the victim and her relationship to the offender constitute special qualifying circumstances. They must be alleged and proved with certainty to justify the imposition of the penalty of death.^[26]

The prosecution has established through the complainant's Certificate of Live Birth that the appellant is her biological father.^[27] The same document shows that she was born on December 14, 1983. Thus, she was twelve (12) years and ten (10) months old in October 1996 and thirteen (13) years and a month old on February 5, 1997.

Considering that the minority of the complainant and her relationship to the appellant were sufficiently alleged in the information and proved beyond reasonable doubt at the trial, the trial court correctly sentenced the appellant to suffer the supreme penalty of death under Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, for the rapes committed in October 1996 and on February 5, 1997.^[28]

Four members of the Court-although maintaining their adherence to the separate opinions expressed in People vs. Echegaray^[29] that Republic Act No. 7659, insofar as it prescribes the death penalty, is unconstitutional-nevertheless submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should be imposed.

We now come to the civil liabilities of the appellant for the two (2) counts of rape he committed. The civil indemnity the trial court awarded in the amount of P50,000.00 must be modified in line with our decision in People vs. Victor^[30] that if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law (Republic Act No. 7659), the indemnity for the victim shall be in the increased amount of not less than P75,000.00.^[31]

The appellant should also pay moral damages. In the crime of rape, moral damages may additionally be granted to the victim in the criminal proceeding in such amount as the Court deems just, without need for pleading or proof of the basis thereof.^[32] The prevailing policy is to award the amount of P50,000.00 as moral damages for each count of rape.^[33]

Lastly, exemplary damages in the amount of P20,000.00 must be awarded to deter fathers with perverse tendencies and aberrant sexual behaviors from sexually abusing their daughters.^[34]

IN VIEW WHEREOF, the Decision of the Regional Trial Court of Davao City in Criminal Case No. 38,465-97 is AFFIRMED, with modification that the appellant should (1) suffer the death penalty for rape committed in the first week of October 1996 and (2) pay civil indemnity in the amount of P75,000.00, moral damages in the amount of P50,000.00 and exemplary damages in the amount of P20,000.00

Likewise, the Decision in Criminal Case No. 38,465-A-97 is AFFIRMED as to the death penalty imposed on the appellant, and he is ordered to pay civil indemnity in the amount of P75,000.00, moral damages in the amount of P50,000.00 and exemplary damages in the amount of P20,000.00

In accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, upon finality of this Decision, let the records of these cases be forwarded to the Office of the President for possible exercise of executive clemency.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., andSandoval-Gutierrez, JJ., concur.

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