Babanto v. Zosa - Full Text
Babanto v. Zosa - Full Text
Babanto v. Zosa - Full Text
RAPE
FIRST DIVISION
The petitioner who had been charged with the offense of rape punishable under Art. 335
of the Revised Penal Code questions the decision of the Court of First Instance of
Misamis Occidental convicting him of the lesser offense of qualified seduction.
That on or about the 24th day of October, 1969, in the town of Oroquieta,
province of Misamis Occidental, Philippines and within the jurisdiction of
this Honorable Court, the said accused abusing his position as a
policeman of Oroquieta and taking advantage of the night time and of the
feeble minded (sic) condition of the complainant who is of tender age of
13, with the use of his service firearm and by means of violence and
intimidation, did then and there willfully, (sic) unlawfully and feloniously
have carnal knowledge of the undersigned complainant Leonida Dagohoy,
against her will inside the ABC Hall which happen to be dark. (sic)
Contrary to Art. 335 of the Revised Penal Code as amended by Republic
Act No. 4111, with the aggravating circumstances of (a) night time and (b)
abuse of public position. " (Original Records, p. 1).
The trial court did not find the accused guilty of the rape charged. Instead, it found him
guilty of the lesser offense of qualified seduction. The trial court opined that considering
the evidence on record, accused Babanto actually had sexual intercourse with
complainant Leonida Dagohoy but that such sexual intercourse was not committed
through the use of any violence or intimidation. The dispositive portion of the decision
reads:
... the Court finding the accused guilty beyond reasonable doubt of the
crime of Qualified Seduction, he is hereby punished to suffer
imprisonment of from SIX (6) MONTHS and ONE (1) DAY to FOUR (4)
YEARS and TWO (2) MONTHS of Prision correccional in its minimum and
medium periods; to indemnify the offended girl in the amount of
P3,000.00; to recognize the offspring which may be born out of the crime
committed, there being no positive proof that he was castrated, and if
castrated the castration was successful, his uncorroborated statement
was not enough; to suffer the other accessory penalties provided for by
law; and to pay the costs. His dismissal from the service is strongly
recommended. (Original Records, p. 94).
A motion for reconsideration filed by the accused-petitioner was denied by the trial
court. Hence, this petition.
The Solicitor General in a manifestation filed on February 6, 1971 before this Court
shares the petitioner's view that under the complaint, quoted earlier, the petitioner could
not be legally convicted of the lesser offense of qualified seduction.
We agree with this statement of Justice Felix Q. Antonio, the then Solicitor General.
Under Article 337 of the Revised Penal Code, the elements of qualified seduction are:
(1) the offended party is a virgin; (2) she must be over 12 and under 18 years of age; (3)
the offender has sexual intercourse with her; and (4) the offender is a person in public
authority, priest, house servant, domestic, guardian, teacher, one entrusted with the
education or custody of the offended party, or a brother or ascendant of the latter.
The complaint alleged that the accused abused his position as a policeman, that
Leonida Dagohoy was of the tender age of 13, and that the accused had carnal
knowledge of the complainant. However, there is no allegation that the complainant was
a "virgin". It is true that virginity is presumed if the girl is over 12 and under 18 years of
age, is unmarried and of good reputation. The presumption notwithstanding, virginity is
still an essential element of the crime of qualified seduction and must be alleged in the
complaint.
A conviction for the crime of qualified seduction without the allegation of virginity would
violate the petitioner's right to be informed of the nature and cause of the accusation
against him. (Sec. 1 (c), Rule 115, Rules of Court; Sec. 1(17), Art. III, 1935 Constitution;
Section 1 (19), Art. IV, Constitution; People v. Castro, 58 SCRA 473; People v.
Ramirez, 69 SCRA 144).
In the same manifestation, the Solicitor General however recommends " ... that the
merits of the case be certified to the proper appellate court for review as the evidence
may sustain a finding of guilt of the crime of RAPE."
As a matter of correct procedure, this case should have been raised to the Court of
Appeals in a regular appeal, instead of the accused coming to the Supreme Court
directly.
As pointed out by the Solicitor General in the manifestation filed on February 6, 1971,
"after all, by this Petition for Review, petitioner in effect is appealing from the judgment
of conviction." The then Solicitor General, Justice Felix Q. Antonio quoted the court's
impressions of the testimonies of witnesses as follows:
... On further investigation, she was able to pry from her that she was
sexually abused by a man, a certain policeman by the name of Eusebio
Babanto.
Sometime after January 15, 1970, Eusebio Babanto passed by her house
and dropped in and asked her what the girl (Leonida told her. She told
Babanto that Leonida said that he brought her to the ABC Hall and had
her sit while he (Babanto) placed his gun on the second tier of the
grandstand; spread papers on the cement floor and let her lie on the
paper, while he (Eusebio Babanto) took off his trousers. When the penis of
Babanto stood errect, Babanto mounted her and she exclaimed ouch!
ouch!
At dawn of October 24, 1969 she was in the market of Oroquieta sitting
leisurely. While thus sitting, Eusebio Babanto, a policeman, came and
held her by the right hand at the same time saying: I will bring you to the
municipal building. 'She accompanied and went along with him because
she was being held. But they did not reach the municipal building because
Eusebio Babanto brought her to the ABC Hall. The hall was empty and
there was nobody in. It was dark. In the ABC Hall, Eusebio Babanto made
her lie down face upward. Then he lifted her dress and pulled down her
pantie. She felt pain in her vagina when his penis penetrated her sexual
organ. She cried. He completed the act, stood up and left her; told her that
if she tells her parents, he will shoot her. Eusebio Babanto was in uniform
and with a side arm.
She did not shout because he held her mouth. After Babanto left her, she
put on her pantie back and felt her vagina was bleeding. She was then
wearing a blue dress. When morning came, she took a bath and washed
her pantie.
When Babanto left her that dawn in the ABC Hall, she went to the
seashore. She did not report to her parents because she was afraid of
Eusebio Babanto when he said that he will kill her if she tells her parents.
But eventually her parents came to know of what happened to her that she
was abused because they investigated her. Ultimately, she confessed to
them. So, they brought her to the hospital and had her examined by a
doctor.
When the accused filed his brief on April 2, 1971, he ignored the factual considerations
raised by the Solicitor General and insisted on an acquittal based on the error in his
conviction for qualified seduction.
Considering that the penalty for rape is reclusion perpetua which is within our appellate
jurisdiction and that no useful purpose would be served by referring this case to the
Court of Appeals only to have it return to us from that court, we decided to fully review
the entire records, which we ordered transmitted from the trial court, and to go into all
aspects of the case.
On June 4, 1971, the Solicitor General repeated his earlier stand that the petitioner
cannot be convicted for the crime of qualified seduction under the information filed
against him, however under the circumstances of the case, he can be convicted of rape.
The Solicitor General recommended "that the merits of the criminal case be certified for
review by the proper appellate court and petitioner-accused be not discharged and
instead be made to pursue his Petition for Review in the form of an ordinary appeal. "
On June 22, 1971, we issued a Resolution informing the petitioner that "he may file a
reply to the said memoranda (of the Solicitor General) within 10 days from notice
hereof, if he so desires. "
Leonida narrated the incident of October 24, 1969 wherein accused petitioner allegedly
raped her as follows: At dawn of October 24, 1969, she was seated in the market
located at Oroquieta City, when the accused petitioner Babanto, a policeman
approached her and held her right hand. Babanto told her that they will go to the
municipal building and she went with him because he held her. However, she was not
brought to the municipal hall. Instead Babanto brought her to the ABC Hall. There was
no one in the ABC Hall and it was dark. When they arrived at the ABC Hall, Babanto
made her lie down with her face upward. While she was in this position, Babanto lifted
up her dress and took away her panty. While Babanto was lifting her dress and
removing her panty, she kicked him but he held her down. Then Babanto exposed his
penis, laid down on top of her and commenced the sexual act. She felt pain in her
vagina as his penis penetrated. She could not shout when she was being abuse
because Babanto covered her mouth, Leonida then cried. After the sexual act Babanto
told her that if she was going to tell her parents he was going to shoot her. Thereafter,
Babanto left her. While putting back her panty, she noticed her vagina "bloodbleeding. "
The following morning she took a bath and washed her panty smeared with blood. She
did not report the incident to her parents because of the threat on her life by Babanto. At
the time of the incident, Babanto was in uniform with a sidearm. Leonida knew him well.
She said that Babanto's daughter was her friend. (TSN, April 1, 1970, pp. 63-70).
Leonida's mother who, after observing her to be weak and quite feverish while in the
cage where she was placed, asked her "if she was not abused by any man." According
to her mother, she had to ask her for the second time before Leonida admitted that she
was abused sexually by a man whom she identified as a certain policeman, Eusebio
Babanto. (TSN, March 1970, pp. 5-6)
Leonida's mother then informed her husband about Leonida's story. They decided to
have Leonida medically examined. Leonida was examined on October 27, 1969 by Dr.
German Garcia, Chief of the Provincial Hospital who issued a medical certificate, (Exh.
"B ") with the following findings:
Given the two versions of the incident, the trial court gave credence to the prosecution's
version. The trial court held:
From the declaration of the girl the Court can not conceive of any
probability that the intercourse took place with violence or intimidation
although the Court believes that the accused had sexual relation with the
complaining witness at the ABC Hall of Oroquieta, Misamis Occidental.
The testimony of the girl herself who declared on the abuse is very clear
that the accused at the public market on the pretext to protect her ordered
her to come along with him to the municipal building but instead to the
ABC Hall near the municipal building, By the way, the ABC Hall is an
annex to the municipal building. In the ABC Hall the accused had sexual
intercourse with her. The only intimidation that can be gathered from the
declaration of the complaining witness is what the accused hurled at her
that he will kill her if she tells her parents after the act.
The Court does not give any credit whatsoever to the claim of the
accussed that he did not touch the girl, much less raped her. The fact is
fully established that the accused brought the girl to the municipal building,
or was on their way to the municipal building as testified to by Apos, a co-
policeman, and witnessed by Sergeant Bongabong and Patrolman
Tabamo. This collaborates in fact the claim of the complaining girl that she
was ordered to come along to the municipal building but they turned to the
ABC Hall where the accused consummated sexual intercourse with her.
We agree with the trial court's findings that sexual intercourse took place between the
accused-petitioner and complainant Leonida Dagohoy in the manner that Leonida
narrated in court. It is inconceivable that a 13 year old mentally deficient girl could
create such a story and implicate the accused- petitioner who at that time was a police
officer and the father of a friend. There is no evidence on record which could show evil
motive on her part that she could, despite her mental incapacity, accuse the petitioner of
such a heinous crime as rape. The record shows that the two of them, were really
together just about the time the incident happened and that the ABC Hall, where the
crime was committed was an annex of the municipal building. Hence, accused-
petitioner could have easily gone to the municipal building after the incident, earlier than
Patrolman Apos, who admittedly was behind Leonida and the accused-petitioner on
their way to the municipal building.
Except for Babanto's holding down the girl when she kicked him and covering her mouth
when she was in pain there was no violence which accompanied the sexual intercourse.
However, we find as erroneous the trial court's conclusion that under the circumstances,
where no physical intimidation preceded the sexual intercourse an essential element
which could qualify accused-petitioner's crime to rape is missing. In the case of People
v. Franco, (114 SCRA 737) we interpreted intimidation for purposes of the crime of rape
as follows:
... And, at this juncture it is well to remember that a father exercises such
strong moral and physical influence and control over his daughter that the
force or violence, threat or intimidation upon her need not be of such
nature and degree as would be required in other cases (People vs. Rinion,
CA 61 OG 4422, cited in Revised Edition, Reyes, The Revised Penal
Code). It is not necessary that there be sins from Leonora that she put up
a resistence, for a sexual act between. father and daughter is so revolting
that it would have submitted thereto if her will to resist had not been
overpowered (People vs. Alienea, C.A. 45 OG Sept. 5, 1950). The force or
violence necessary in rape is naturally a relative term, depending on the
age, size and strength of the parties and their relation to each other
(People v. Savellano supra.)
In the instant case, considering the age, mental abnormality, and deficiency of the
complainant plus the fact that the accused-petitioner was at the time of the incident in
uniform and with a side arm, there was sufficient intimidation to convict for rape. The
fact that the complainant kicked the accused- petitioner while the latter was lifting her
dress and removing her panty and that she cried afterwards negate any consent on her
part to the sexual intercourse. Thus, we ruled in People v. Burgos (115 SCRA 767) a
case involving the rape of a deafmute and demented girl:
Because of the physical and mental condition of Dolores, she could not
have given rational consent to the carnal intercourse - as correctly ruled
by the trial court. It would have required a great deal of effort for a 13-year
old deafmute to resist the sexual assault of the 5'8" market vendor
especially so since the same was unexpected considering the place and
time of its perpetration. And only a mind fully aware of the moral and
social consequences of the consummation of such sexual assault could
have given intelligent consent to gather the courage to put up the
resistance necessary to repel such aggression. A rational consent to an
act could only be given by one who has the ability to discern the
consequences of said act. And Dolores certainly did not have such mental
ability not only because of lack of formal education, but also because of
her physical and mental deficiencies. (Emphasis supplied)
The evidence also shows that as a result of the sexual intercourse, complainant
Leonida became pregnant as can be shown by a medical certificate (Exh. "C", Original
Record, p. 112) issued by Dr. German Garcia. It should be noted that complainant
Leonida had her first menstruation period on September 29, 1969, barely a month
before the incident. In a last ditch effort to save himself, accused-petitioner testified that
he was "caponized" or "castrated" sometime in 1958 at the clinic of Dr. Gedeon Quijano.
According to Babanto, Dr. Quijano was then in Canada so he tried to secure a medical
certificate attesting to the surgical operation from the doctor's clinic but he was refused
... because according to them it is already quite a long time and the records could not
be found." (TSN, June 3, 1970, p. 118) He further testified that during the operation he
was attended to by a certain Mrs. Berenguel who told him that she could remember that
I was being operated but that I could not remember the year." (TSN, June 3, 1970, p.
118) As a result of this operation Babanto said he never begot any child by his wife up
to the present.
IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside.
Petitioner is found guilty beyond reasonable doubt of the crime of rape as defined in
Article 335 (1) as amended, of the Revised Penal Code and (1) is sentenced to suffer
the penalty of reclusion perpetua; (2) to recognize the child which may have been born
to Leonida Dagohoy as a result of the crime; (3) to indemnify Leonida in the sum of
P12,000.00 as moral damages, and (4) to pay the costs.
SO ORDERED.