Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 49549 August 30, 1990

EVELYN CHUA-QUA, petitioner, 
vs.
HON. JACOBO C. CLAVE, in his capacity as Presidential Executive Assistant, and TAY TUNG HIGH SCHOOL,
INC., respondents.

William C. Gunitang and Jaime Opinion for petitioner.

Laogan Law Offices for private respondent.

REGALADO,  J.:

This would have been just another illegal dismissal case were it not for the controversial and unique situation that the marriage of herein petitioner, then a classroom teacher, to her student who was fourteen (14) years her
junior, was considered by the school authorities as sufficient basis for terminating her services.

Private respondent Tay Tung High School, Inc. is an educational institution in Bacolod City. Petitioner had been employed therein as a
teacher since 1963 and, in 1976 when this dispute arose, was the class adviser in the sixth grade where one Bobby Qua was enrolled.
Since it was the policy of the school to extend remedial instructions to its students, Bobby Qua was imparted such instructions in school
by petitioner.   In the course thereof, the couple fell in love and on December 24, 1975, they got married in a civil ceremony solemnized
1

in Iloilo City by Hon. Cornelio G. Lazaro, City Judge of Iloilo.  Petitioner was then thirty (30) years of age but Bobby Qua being sixteen
2

(16) years old, consent and advice to the marriage was given by his mother, Mrs. Concepcion Ong.  Their marriage was ratified in 3

accordance with the rites of their religion in a church wedding solemnized by Fr. Nick Melicor at Bacolod City on January 10, 1976.  4

On February 4, 1976, private respondent filed with the sub-regional office of the Department of Labor at Bacolod City an application for
clearance to terminate the employment of petitioner on the following ground: "For abusive and unethical conduct unbecoming of a
dignified school teacher and that her continued employment is inimical to the best interest, and would downgrade the high moral
values, of the school."  5

Petitioner was placed under suspension without pay on March 12, 1976.   Executive Labor Arbiter Jose Y. Aguirre, Jr. of the National
6

Labor Relations Commission, Bacolod City, to whom the case was certified for resolution, required the parties to submit their position
papers and supporting evidence. Affidavits   were submitted by private respondent to bolster its contention that petitioner, "defying all
7

standards of decency, recklessly took advantage of her position as school teacher, lured a Grade VI boy under her advisory section and
15 years her junior into an amorous relation."   More specifically, private respondent raised issues on the fact that petitioner stayed
8

alone with Bobby Qua in the classroom after school hours when everybody had gone home, with one door allegedly locked and the
other slightly open.

On September 17, 1976, Executive Labor Arbiter Jose Y. Aguirre, Jr., without conducting any formal hearing, rendered an "Award" in
NLRC Case No. 956 in favor of private respondent granting the clearance to terminate the employment of petitioner. It was held therein
that —

The affidavits . . . although self-serving but were never disputed by the respondent pointed out that before the
marriage of respondent to Bobby Qua, fourteen (14) years her junior and during her employment with petitioner, an
amorous relationship existed between them. In the absence of evidence to the contrary, the undisputed written
testimonies of several witnesses convincingly picture the circumstances under which such amorous relationship was
manifested within the premises of the school, inside the classroom, and within the sight of some employees. While no
direct evidences have been introduced to show that immoral acts were committed during these times, it is however
enough for a sane and credible mind to imagine and conclude what transpired and took place during these
times. . . .  9

Petitioner, however, denied having received any copy of the affidavits referred to.  10

On October 7, 1976, petitioner appealed to the National Labor Relations Commission claiming denial of due process for not having
been furnished copies of the aforesaid affidavits relied on by the labor arbiter. She further contended that there was nothing immoral,
nor was it abusive and unethical conduct unbecoming of a dignified school teacher, for a teacher to enter into lawful wedlock with her
student. 11

On December 27, 1976, the National Labor Relations Commission unanimously reversed the Labor Arbiter's decision and ordered
petitioner's reinstatement with backwages, with the following specific findings:

Affiant Maselliones deposed and said that he saw appellant and Qua sitting on the student desk inside a classroom
after classes. The depositions of affiants Despi and Chin are of the same tenor. No statements whatever were sworn
by them that they were eyewitnesses to immoral or scandalous acts.

xxx xxx xxx

Even if we have to strain our sense of moral values to accommodate the conclusion of the Arbiter, we could not
deduce anything immoral or scandalous about a girl and a boy talking inside a room after classes with lights on and
with the door open.
 xxx xxx xxx

Petitioner-appellee naively insisted that the clearance application was precipitated by immoral acts which did not lend
dignity to the position of appellant. Aside from such gratuitous assertions of immoral acts or conduct by herein
appellant, no evidence to support such claims was introduced by petitioner-appellee. We reviewed the the sequence
of events from the beginning of the relationship between appellant Evelyn Chua and Bobby Qua up to the date of the
filing of the present application for clearance in search of evidence that could have proved detrimental to the image
and dignity of the school but none has come to our attention. . . .  12

The case was elevated by private respondent to the Minister of Labor who, on March 30, 1977, reversed the decision of the National
Labor Relations Commission. The petitioner was, however, awarded six (6) months salary as financial assistance.  13

On May 20, 1977, petitioner appealed the said decision to the Office of the President of the Philippines.   After the corresponding
14

exchanges, on September 1, 1978 said office, through Presidential Executive Assistant Jacobo C. Clave, rendered its decision
reversing the appealed decision. Private respondent was ordered to reinstate petitioner to her former position without loss of seniority
rights and other privileges and with full back wages from the time she was not allowed to work until the date of her actual
reinstatement.  15

Having run the gamut of three prior adjudications of the case with alternating reversals, one would think that this decision of public
respondent wrote  finis to petitioner's calvary. However, in a resolution dated December 6, 1978, public respondent, acting on a motion
for reconsideration   of herein private respondent and despite opposition thereto,   reconsidered and modified the aforesaid decision,
16 17

this time giving due course to the application of Tay Tung High School, Inc. to terminate the services of petitioner as classroom teacher
but giving her separation pay equivalent to her six (6) months salary.  18

In thus reconsidering his earlier decision, public respondent reasoned out in his manifestation/comment filed on August 14, 1979 in this
Court in the present case:

That this Office did not limit itself to the legal issues involved in the case, but went further to view the matter from the
standpoint of policy which involves the delicate task of rearing and educating of children whose interest must be held
paramount in the school community, and on this basis, this Office deemed it wise to uphold the judgment and action
of the school authorities in terminating the services of a teacher whose actuations and behavior, in the belief of the
school authorities, had spawned ugly rumors that had cast serious doubts on her integrity, a situation which was
considered by them as not healthy for a school campus, believing that a school teacher should at all times act with
utmost circumspection and conduct herself beyond reproach and above suspicion;  19

In this petition for certiorari, petitioner relies on the following grounds for the reversal of the aforesaid resolution of public
respondent, viz.:

1. The dismissal or termination of petitioner's employment, despite Tay Tung's claim to the contrary, was actually
based on her marriage with her pupil and is, therefore, illegal.

2. Petitioner's right to due process under the Constitution was violated when the hearsay affidavits of Laddy
Maselliones, Eleuterio Despi, Pina D. Chiu, and Ong Lee Bing, were admitted and considered in evidence without
presenting the affiants as witnesses and affording the petitioner the right to confront and cross-examine them.

3. No sufficient proofs were adduced to show that petitioner committed serious misconduct or breached the trust
reposed on her by her employer or committed any of the other grounds enumerated in Article 283 (Now Article 282)
of the Labor Code which will justify the termination of her employment.  20

We first dispose of petitioner's claim that her right to due process was violated. We do not agree. There is no denial of due process
where a party was afforded an opportunity to present his side. Also, the procedure by which issues are resolved based on position
papers, affidavits and other documentary evidence is recognized as not violative of such right. Moreover, petitioner could have insisted
on a hearing to confront and cross-examine the affiants but she did not do so, obviously because she was convinced that the case
involves a question of law. Besides, said affidavits were also cited and discussed by her in the proceedings before the Ministry of Labor.

Now, on the merits. Citing its upright intention to preserve the respect of the community toward the teachers and to strengthen the
educational system, private respondent submits that petitioner's actuations as a teacher constitute serious misconduct, if not an
immoral act, a breach of trust and confidence reposed upon her and, thus, a valid and just ground to terminate her services. It argues
that as a school teacher who exercises substitute parental authority over her pupils inside the school campus, petitioner had moral
ascendancy over Bobby Qua and, therefore, she must not abuse such authority and respect extended to her. Furthermore, it charged
petitioner with having allegedly violated the Code of Ethics for teachers the pertinent provision of which states that a "school official or
teacher should never take advantage of his/her position to court a pupil or student."  21

On the other hand, petitioner maintains that there was no ground to terminate her services as there is nothing wrong with a teacher
falling in love with her pupil and, subsequently, contracting a lawful marriage with him. She argued that she was dismissed because of
her marriage with Bobby Qua This contention was sustained in the aforesaid decision of the National Labor Relations Commission thus:

. . . One thing, however, has not escaped our observation: That the application for clearance was filed only after more
than one month elapsed from the date of appellant's marriage to Bobby Qua Certainly, such belated application for
clearance weakens instead of strengthening the cause of petitioner-appellee. The alleged immoral acts transpired
before the marriage and if it is these alleged undignified conduct that triggered the intended separation, then why was
the present application for clearance not filed at that time when the alleged demoralizing effect was still fresh and
abrasive? 22

After a painstaking perusal of the records, we are of the considered view that the determination of the legality of the dismissal hinges on
the issue of whether or not there is substantial evidence to prove that the antecedent facts which culminated in the marriage between
petitioner and her student constitute immorality and/or grave misconduct. To constitute immorality, the circumstances of each particular
case must be holistically considered and evaluated in the light of prevailing norms of conduct and the applicable law. Contrary to what
petitioner had insisted on from the very start, what is before us is a factual question, the resolution of which is better left to the trier of
facts.

Considering that there was no formal hearing conducted, we are constrained to review the factual conclusions arrived at by public
respondent, and to nullify his decision through the extraordinary writ of certiorari if the same is tainted by absence or excess of
jurisdiction or grave abuse of discretion. The findings of fact must be supported by substantial evidence; otherwise, this Court is not
bound thereby. 23

We rule that public respondent acted with grave abuse of discretion. As vividly and forcefully observed by him in his original decision:

Indeed, the records relied upon by the Acting Secretary of Labor (actually the records referred to are the affidavits
attached as Annexes "A" to "D" of the position paper dated August 10, 1976 filed by appellee at the arbitration
proceedings) in arriving at his decision are unbelievable and unworthy of credit, leaving many question unanswered
by a rational mind. For one thing, the affidavits refer to certain times of the day during off school hours when appellant
and her student were found together in one of the classrooms of the school. But the records of the case present a
ready answer: appellant was giving remedial instruction to her student and the school was the most convenient place
to serve the purpose. What is glaring in the affidavits is the complete absence of specific immoral acts allegedly
committed by appellant and her student. For another, and very important at that, the alleged acts complained of
invariably happened from September to December, 1975, but the disciplinenary action imposed by appellee was
sought only in February, 1976, and what is more, the affidavits were executed only in August, 1976 and from all
indications, were prepared by appellee or its counsel. The affidavits heavily relied upon by appellee are clearly the
product of after-thought. . . . The action pursued by appellee in dismissing appellant over one month after her
marriage, allegedly based on immoral acts committed even much earlier, is open to basis of the action sought
seriously doubted; on the question. The basis of the action sought is seriously doubted; on the contrary, we are more
inclined to believe that appellee had certain selfish, ulterior and undisclosed motives known only to itself.  24

As earlier stated, from the outset even the labor arbiter conceded that there was no direct evidence to show that immoral acts were
committed. Nonetheless, indulging in a patently unfair conjecture, he concluded that "it is however enough for a sane and credible mind
to imagine and conclude what transpired during those times."   In reversing his decision, the National Labor Relations Commission
25

observed that the assertions of immoral acts or conducts are gratuitous and that there is no direct evidence to support such claim,   a 26

finding which herein public respondent himself shared.

We are, therefore, at a loss as to how public respondent could adopt the volte-face in the questioned resolution, which we hereby reject, despite his prior trenchant
observations hereinbefore quoted. What is revealing however, is that the reversal of his original decision is inexplicably based on unsubstantiated surmises and non sequiturs which he incorporated in his assailed resolution
in this wise:

. . . While admittedly, no one directly saw Evelyn Chua and Bobby Qua doing immoral acts inside the classroom it
seems obvious and this Office is convinced that such a happening indeed transpired within the solitude of the
classrom after regular class hours. The marriage between Evelyn Chua and Bobby Qua is the best proof which
confirms the suspicion that the two indulged in amorous relations in that place during those times of the day. . . .  27

With the finding that there is no substantial evidence of the imputed immoral acts, it follows that the alleged violation of the Code of
Ethics governing school teachers would have no basis. Private respondent utterly failed to show that petitioner took advantage of her
position to court her student. If the two eventually fell in love, despite the disparity in their ages and academic levels, this only lends
substance to the truism that the heart has reasons of its own which reason does not know. But, definitely, yielding to this gentle and
universal emotion is not to be so casually equated with immorality. The deviation of the circumstances of their marriage from the usual
societal pattern cannot be considered as a defiance of contemporary social mores.

It would seem quite obvious that the avowed policy of the school in rearing and educating children is being unnecessarily bannered to
justify the dismissal of petitioner. This policy, however, is not at odds with and should not be capitalized on to defeat the security of
tenure granted by the Constitution to labor. In termination cases, the burden of proving just and valid cause for dismissing an employee
rests on the employer and his failure to do so would result in a finding that the dismissal is unjustified.

The charge against petitioner not having been substantiated, we declare her dismissal as unwarranted and illegal. It being apparent,
however, that the relationship between petitioner and private respondent has been inevitably and severely strained, we believe that it
would neither be to the interest of the parties nor would any prudent purpose be served by ordering her reinstatement.

WHEREFORE, the petition for certiorari is GRANTED and the resolution of public respondent, dated December 6, 1978 is ANNULLED
and SET ASIDE. Private respondent Tay Tung High School, Inc. is hereby ORDERED to pay petitioner backwages equivalent to three
(3) years, without any deduction or qualification, and separation pay in the amount of one (1) month for every year of service.

SO ORDERED.

Melencio-Herrera (Chairman), Paras and Padilla, JJ., concur.

Sarmiento, J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 117472 June 25, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 

vs.
LEO ECHEGARAY y PILO, accused-appellant.

PER CURIAM:p

Amidst the endless debates on whether or not the reimposition of the death penalty is indeed a deterrent as far as the commission of heinous crimes is concerned and while the attendant details pertaining to the execution
of a death sentence remain as yet another burning issue, we are tasked with providing a clear-cut resolution of whether or not the herein accused-appellant deserves to forfeit his place in human society for the infliction of
the primitive and bestial act of incestuous lust on his own blood.

Before us for automatic review is the judgment of conviction, dated September 7, 1994, for the crime of Rape, rendered after marathon
hearing by the Regional Trial Court of Quezon City, Branch 104, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered finding accused LEO ECHEGARAY Y PILO guilty beyond reasonable
doubt of the crime of RAPE as charged in the complaint, aggravated by the fact that the same was commited by the
accused who is the father/stepfather of the complainant, he is hereby sentenced to suffer the penalty of DEATH, as
provided for under RA. No. 7659, to pay the complainant Rodessa Echegaray the sum
of P50,000.00 as damages, plus all the accessory penalties provided by law, without subsidiary imprisonment in case
of insolvency, and to pay the costs. 1

We note, however, that the charge had been formulated in this manner:

COMPLAINT

The undersigned accuses LEO ECHEGARAY Y PILO of the crime of RAPE, committed as follows:

That on or about the month of April 1994, in Quezon City, Philippines, the above-named accused, by means of force
and intimidation did then and there wilfully, unlawfully and feloniously have carnal knowledge of the undersigned
complainant, his daughter, a minor, 10 years of age, all against her will and without her consent, to her damage and
prejudice.

CONTRARY TO LAW 2

Upon being arraigned on August 1, 1994, the accused-appellant, assisted by his counsel de oficio, entered the plea of "not guilty."

These are the pertinent facts of the case as summarized by the Solicitor-General in his brief:

This is a case of rape by the father of his ten-year old daughter.

Complainant RODESSA ECHEGARAY is a ten-year old girl and a fifth-grader, born on September 11, 1983.
Rodessa is the eldest of five siblings. She has three brothers aged 6, 5 and 2, respectively, and a 3-month old baby
sister. Her parents are Rosalie and Leo Echegaray, the latter being the accused-appellant himself. The victim lives
with her family in a small house located at No. 199 Fernandez St., Barangay San Antonio, San Francisco Del Monte,
Quezon City (pp. 5-9, Aug. 9, 1994, TSN).

Sometime in the afternoon of April 1994, while Rodessa was looking after her three brothers in their house as her
mother attended a gambling session in another place, she heard her father, the accused-appellant in this case, order
her brothers to go out of the house (pp. 10-11, ibid). As soon as her brothers left, accused-appellant Leo Echegaray
approached Rodessa and suddenly dragged her inside the room (p. 12, ibid). Before she could question the
appellant, the latter immediately, removed her panty and made her lie on the floor (p. 13, ibid). Thereafter, appellant
likewise removed his underwear and immediately placed himself on top of Rodessa. Subsequently, appellant
forcefully inserted his penis into Rodessa's organ causing her to suffer intense pain (pp. 14-15, ibid). While appellant
was pumping on her, he even uttered. "Masarap ba, masarap ba?" and to which Rodessa answered: "Tama na Papa,
masakit" (p. 16, ibid). Rodessa's plea proved futile as appellant continued with his act. After satisfying his bestial
instinct, appellant threatened to kill her mother if she would divulge what had happened. Scared that her mother
would be killed by appellant, Rodessa kept to herself the ordeal she suffered. She was very afraid of appellant
because the latter, most of the time, was high on drugs (pp. 17-18, ibid.). The same sexual assault happened up to
the fifth time and this usually took place when her mother was out of the house (p. 19, ibid.). However, after the fifth
time, Rodessa decided to inform her grandmother, Asuncion Rivera, who in turn told Rosalie, Radessa's mother.
Rodessa and her mother proceeded to the Barangay Captain where Rodessa confided the sexual assaults she
suffered. Thereafter, Rodessa was brought to the precinct where she executed an affidavit (p. 21, ibid.). From there,
she was accompanied to the Philippine National Police Crime Laboratory for medical examination (p. 22, ibid.).
 Rodessa testified that the said sexual assaults happened only during the time when her mother was pregnant.
Rodessa added that at first, her mother was on her side. However, when appellant was detained, her mother kept on
telling her. "Kawawa naman ang Tatay mo, nakakulong" (pp. 39-40, ibid.).

When Rodessa was examined by the medico-legal officer in the person of Dra. Ma. Cristina B. Preyna, the 3

complainant was described as physically on a non-virgin state, as evidenced by the presence of laceration of the
hymen of said complainant (TSN, Aug. 22, 1995, pp. 8-9). 4

On the other hand, the accused-appellant's brief presents a different story:

. . . the defense presented its first witness, Rosalie Echegaray. She asserted that the RAPE charge against the
accused was only the figment of her mothers dirty mind. That her daughter's complaint was forced upon her by her
grandma and the answers in the sworn statement of Rodessa were coached. That the accusation of RAPE was
motivated by Rodessa's grandmother's greed over the lot situated at the Madrigal Estate-NHA Project, Barangay San
Antonio, San Francisco del Monte, Quezon City, which her grandmother's paramour, Conrado Alfonso gave to the
accused in order to persuade the latter to admit that Rodessa executed an affidavit of desistance after it turned out
that her complaint of attempted homicide was substituted with the crime of RAPE at the instance of her mother. That
when her mother came to know about the affidavit of desistance, she placed her granddaughter under the custody of
the Barangay Captain. That her mother was never a real mother to her.

She stated that her complaint against accused was for attempted homicide as her husband poured alcohol on her
body and attempted to burn her. She identified the certification issued by the NHA and Tag No. 87-0393 (Exh. 2).
That the Certification based on the Masterlist (Exh. 3) indicates that the property is co-owned by accused and
Conrado Alfonso. That Rodessa is her daughter sired by Conrado Alfonso, the latter being the paramour of her
mother. That Conrado Alfonso waived his right and participation over the lot in favor of the accused in consideration
of the latter's accepting the fact that he is the father of Rodessa to simulate the love triangle and to conceal the
nauseating sex orgies from Conrado Alfonso's real wife.

Accused testified in his behalf and stated that the grandmother of the complainant has a very strong motive in
implicating him to the crime of RAPE since she was interested to become the sole owner of a property awarded to
her live-in partner by the Madrigal Estate-NHA Project. That he could not have committed the imputed crime because
he considers Rodessa as his own daughter. That he is a painter-contractor and on the date of the alleged
commission of the crime, he was painting the house of one Divina Ang of Barangay Vitalis, Parañaque, Metro Manila
(Exh. 4). The travel time between his work place to his residence is three (3) hours considering the condition of traffic.
That the painting contract is evidenced by a document denominated "Contract of Services" duly accomplished (see
submarkings of Exh. 4). He asserted that he has a big sexual organ which when used to a girl 11 years old like
Rodessa, the said female organ will be "mawawarak." That it is abnormal to report the imputed commission of the
crime to the grandmother of the victim.

Accused further stated that her (sic) mother-in-law trumped-up a charge of drug pushing earlier and he pleaded guilty
to a lesser offense of using drugs. The decretal portion of the judgment of conviction ordering the accused to be
confined at the Bicutan Rehabilitation Center irked the grandmother of Rodessa because it was her wish that
accused should be meted the death penalty.

Accused remain steadfast in his testimony perorating the strong motive of Rodessa's grandmother in implicating him
in this heinous crime because of her greed to become the sole owner of that piece of property at the National
Housing Authority-Madrigal Project, situated at San Francisco del Monte, Quezon City, notwithstanding rigid cross-
examination. He asserted that the imputed offense is far from his mind considering that he treated Rodessa as his
own daughter. He categorically testified that he was in his painting job site on the date and time of the alleged
commission of the crime.

Mrs. Punzalan was presented as third defense witness. She said that she is the laundry woman and part time baby
sitter of the family of accused. That at one time, she saw Rodessa reading sex books and the Bulgar newspaper.
That while hanging washed clothes on the vacant lot, she saw Rodessa masturbating by tinkering her private parts.
The masturbation took sometime.

This sexual fling of Rodessa were corroborated by Silvestra Echegaray, the fourth and last witness for the defense.
She stated that she tried hard to correct the flirting tendency of Rodessa and that she scolded her when she saw
Rodessa viewing an X-rated tape. Rodessa according to her was fond of going with friends of ill-repute. That (sic) she
corroborated the testimony of Mrs. Punzalan by stating that she herself saw Rodessa masturbating inside the room of
her house. 5

In finding the accused-appellant guilty beyond reasonable doubt of the crime of rape, the lower court dismissed the defense of alibi and
lent credence to the straightforward testimony of the ten-year old victim to whom no ill motive to testify falsely against accused-
appellant can be attributed. The lower court likewise regarded as inconsequential the defense of the accused-appellant that the
extraordinary size of his penis could not have insinuated itself into the victim's vagina and that the accused is not the real father of the
said victim.

The accused-appellant now reiterates his position in his attempt to seek a reversal of the lower court's verdict through the following
assignment of errors:

1. THE LOWER COURT FAILED TO APPRECIATE THE SINISTER MOTIVE OF PRIVATE

COMPLAINANT'S GRANDMOTHER? THAT PRECIPITATED THE FILING OF THE CHARGE OF
RAPE, HENCE IT ERRED IN HOLDING ACCUSED GUILTY AS CHARGED.

2. THE COURT BELOW OVERLOOKED THE FACT THAT THE HEALED LACERATIONS AT 3
AND 7 O'CLOCK COULD NOT HAVE BEEN DUE TO THE PUMPING OF THE PENIS OF
ACCUSED TO THE VAGINA OF PRIVATE COMPLAINANT, HENCE IT ERRED IN HOLDING
 THAT ACCUSED COMMITTED THE CRIME CHARGED, NOTWITHSTANDING VEHEMENT
DENIAL.

3. THE COURT A QUO WHIMSICALLY IGNORED THE DEFENSE OF ALIBI THAT ACCUSED

WAS IN PARAÑAQUE ON THE DATE AND TIME OF THE IMPUTED CRIME HENCE, IT ERRED
IN HOLDING THAT ALIBI IS NOT SUSTAINABLE IN THE CASE AT BAR. 6

Considering that a rape charge, in the light of the reimposition of the death penalty, requires a thorough and judicious examination of
the circumstances relating thereto, this Court remains guided by the following principles in evaluating evidence in cases of this nature:
(a) An accusation for rape can be made with facility; it is difficult to prove but more difficult for the accused though innocent to disprove;
(b) In view of the intrinsic nature of the crime of rape where only two persons are involved, the testimony of the complainant must be
scrutinized with extreme caution; and (c) The evidence for the prosecution must stand and fall on its own merits, and cannot be allowed
to draw strength from the weakness of the evidence for the defense.  7

Anent the first assigned error, no amount of persuasion can convince this Court to tilt the scales of justice in favor of the accused-
appellant notwithstanding that he cries foul insisting that the rape charge was merely concocted and strongly motivated by greed over a
certain lot situated at the NHA-Madrigal Estate Housing Project, Barangay San Antonio, San Francisco del Monte, Quezon City. The
accused-appellant theorizes that prosecution witness Asuncion Rivera, the maternal grandmother of the victim Rodessa, concocted the
charge of rape so that, in the event that the accused-appellant shall be meted out a death sentence, title to the lot will be consolidated
in her favor. Indeed, the lot in question is co-owned by the accused-appellant and Conrado Alfonso, the live-in partner of Asuncion
Rivera, according to the records of the National Housing Authority (Exh. "3"). The accused-appellant would want us to believe that the
rape charge was fabricated by Asuncion Rivera in order to eliminate the accused-appellant from being a co-owner. So, the live-in
partners would have the property for their own. 8

We believe, as did the Solicitor-General, that no grandmother would be so callous as to instigate her 10-year old granddaughter to file a
rape case against her own father simply on account of her alleged interest over the disputed lot. 9

It is a well-entrenched jurisprudential rule that the testimony of a rape victim is credible where she has no motive to testify against the
accused.  10

We find no flaws material enough to discredit the testimony of the ten-year old Rodessa which the trial court found convincing enough
and unrebutted by the defense. The trial court not surprisingly noted that Rodessa's narration in detail of her father's monstrous acts
had made her cry.  Once again, we rule that:
11

. . . The testimony of the victim who was only 12 years old at the time of the rape as to the circumstances of the rape
must be given weight, for testimony of young and immature rape victims are credible (People v. Guibao, 217 SCRA
64 [1993]). No woman especially one of tender age, practically only a girl, would concoct a story of defloration, allow
an examination of her private parts and thereafter expose herself to a public trial, if she were not motivated solely by
the desire to have the culprit apprehended and punished (People v. Guibao, supra).  12

The accused-appellant points out certain inconsistencies in the testimonies of the prosecution witnesses in his attempt to bolster his
claim that the rape accusation against him is malicious and baseless. Firstly, Rodessa's testimony that the accused-appellant was
already naked when he dragged her inside the room is inconsistent with her subsequent testimony that the said accused-appellant was
still wearing short pants when she was dragged inside the room. Secondly, Rodessa's sworn statement before the police investigator
which indicated that, while the accused was executing pumping acts, he uttered the words "Masarap ba?", differ from her testimony in
court wherein she related that, when the accused took out his penis from her vagina, the accused said "Masarap, tapos na." Thirdly, the
victim's grandmother, Asuncion Rivera, recounted in her sworn statement that it was the accused who went to see her to apprise her of
the rape committed on her granddaughter. However, in her testimony in court , Asuncion Rivera claimed that she was the one who
invited the accused-appellant to see her in her house so as to tell her a secret.  These alleged discrepancies merely pertain to minor
13

details which in no way pose serious doubt as to the credibility of the prosecution witnesses. Whether or not the accused was naked
when he dragged Rodessa inside the room where he sexually assaulted her bears no significant effect on Rodessa's testimony that she
was actually raped by the accused-appellant. Moreover, a conflicting account of whatever words were uttered by the accused-appellant
after he forcefully inserted his penis into Rodessa's private organ against her will cannot impair the prosecution's evidence as a whole.
A determination of which version earmarks the truth as to how the victim's grandmother learned about the rape is inconsequential to the
judgment of conviction.

As we have pronounced in the case of People v. Jaymalin:  14

This Court has stated time and again that minor inconsistencies in the narration of the witness do not detract from its
essential credibility as long as it is on the whole coherent and intrinsically believable. Inaccuracies may in fact
suggest that the witness is telling the truth and has not been rehearsed as it is not to he expected that he will be able
to remember every single detail of an incident with perfect or total recall.

After due deliberation, this Court finds that the trial judge's assessment of the credibility of the prosecution witnesses deserves our
utmost respect in the absence of arbitrariness.

With respect to the second assigned error, the records of the instant case are bereft of clear and concrete proof of the accused-
appellant's claim as to the size of his penis and that if that be the fact, it could not have merely caused shallow healed lacerations at
3:00 and 7:00 o'clock.   In his testimony, the accused-appellant stated that he could not have raped Rodessa because of
15

the size of his penis which could have ruptured her vagina had he actually done so.   This Court gives no probative value on the
16

accused-appellant's self-serving statement in the light of our ruling in the case of People v. Melivo, supra, 7 that:
1

The vaginal wall and the hymenal membrane are elastic organs capable of varying degrees of distensibility. The
degree of distensibility of the female reproductive organ is normally limited only by the character and size of the pelvic
inlet, other factors being minor. The female reprodructive canal being capable of allowing passage of a regular fetus,
there ought to be no difficulty allowing the entry of objects of much lesser size, including the male reproductive organ,
which even in its largest dimensions, would still be considerably smaller than the full-term fetus.
 xxx xxx xxx

In the case at bench, the presence of healed lacerations in various parts of he vaginal wall, though not as extensive
as appellant might have expected them to be, indicate traumatic injury to the area within the period when the
incidents were supposed to have occurred. (At pp. 13-14, emphasis supplied)

In rape cases, a broken hymen is not an essential element thereof.   A mere knocking at the doors of the pudenda, so to speak, by the
18

accused's penis suffices to constitute the crime of rape as full entry into the victim's vagina is not required to sustain a conviction.   In
19

the case, Dr. Freyra, the medico-legal examiner, categorically testified that the healed lacerations of Rodessa on her vagina were
consistent with the date of the commission of the rape as narrated by the victim to have taken place in April, 1994.  20

Lastly, the third assigned error deserves scant consideration. The accused-appellant erroneously argues that the Contract of Services
(Exhibit 4) offered as evidence in support of the accused-appellant's defense of alibi need not be corroborated because there is no law
expressly requiring so.   In view of our finding that the prosecution witnesses have no motive to falsely testify against the accused-
21

appellant, the defense of alibi, in this case, uncorroborated by other witnesses, should be completely disregarded.   More importantly,
22

the defense of alibi which is inherently weak becomes even weaker in the face of positive identification of the accused-appellant as
perpetrator of the crime of rape by his victim, Rodessa.  23

The Contract of Services whereby the accused-appellant obligated himself to do some painting job at the house of one Divina Ang in
Parañaque, Metro Manila, within 25 days from April 4, 1994, is not proof of the whereabouts of the accused-appellant at the time of the
commission of the offense.

The accused-appellant in this case is charged with Statutory Rape on the basis of the complaint, dated July 14, 1994. The gravamen of
the said offense, as stated in paragraph 3, Article 335 of the Revised Penal Code, is the carnal knowledge of a woman below twelve
years old.   Rodessa positively identified his father accused-appellant, as the culprit of Statutory Rape. Her account of how the
24

accused-appellant succeeded in consummating his grievous and odious sexual assault on her is free from any substantial self-
contradiction. It is highly inconceivable that it is rehearsed and fabricated upon instructions from Rodessa's maternal grandmother
Asuncion Rivera as asserted by the accused-appellant. The words of Chief Justice Enrique M. Fernando, speaking for the Court, more
than two decades ago, are relevant and worth reiterating, thus:

. . . it is manifest in the decisions of this Court that where the offended parties are young and immature girls like the
victim in this case, (Cited cases omitted) there is marked receptivity on its, part to tend credence to their version of
what transpired. It is not to be wondered at. The state, as parens patria, is under the obligation to minimize the risk of
harm to those, who, because of their minority, are as yet unable to take care of themselves fully. Those of tender
years deserve its utmost protection. Moreover, the injury in cases of rape is not inflicted on the unfortunate victim
alone. The consternation it causes her family must also be taken into account It may reflect a failure to abide by the
announced concern in the fundamental law for such institution There is all the more reason then for the rigorous
application of the penal law with its severe penalty for this offense, whenever warranted. It has been aptly remarked
that with the advance in civilization, the disruption in public peace and order it represents defies explanation, much
more so in view of what currently appears to be a tendency for sexual permissiveness. Where the prospects of
relationship based on consent are hardly minimal, self-restraint should even be more marked.  25

Under Section 11 of Republic Act No. 7659 often referred to as the Death Penalty Law, Art. 335 of the Revised Penal Code was
amended, to wit:

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 eigthteen (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.

xxx xxx xxx

(Emphasis supplied)

Apparently, as a last glimpse of hope, the accused-appellant questions the penalty imposed by the trial court by declaring that he is
neither a father, stepfather or grandfather of Rodessa although he was a confirmed lover of Rodessa's mother.   On direct examination,
26

he admitted that before the charge of rape was riled against him, he had treated Rodessa as his real daughter and had provided for her
food, clothing, shelter and education.  7 The Court notes that Rodessa uses the surname of the accused-appellant, not Rivera (her
2

mother's maiden name) nor Alfonso (her grandmother's live-in partner). Moreover, Rodessa's mother stated during the cross-
examination that she, the accused-appellant, and her five children, including Rodessa, had been residing in one house only.   At any
28

rate, even if he were not the father, stepfather or grandfather of Rodessa, this disclaimer cannot save him from the abyss where
perpetrators of heinous crimes ought to be, as mandated by law. Considering that the accused-appellant is a confirmed lover of
Rodessa's mother,   he falls squarely within the aforequoted portion of the Death Penalty Law under the term "common-law spouse of
29

the parent of the victim."

The fact that the ten-year old Rodessa referred to the accused-appellant as "Papa" is reason enough to conclude that accused-
appellant is either the father or stepfather of Rodessa. Thus, the act of sexual assault perpetrated by the accused on his young victim
has become all the more repulsive and perverse. The victim's tender age and the accused-appellant's moral ascendancy and influence
over her are factors which forced Rodessa to succumb to the accused's selfish and bestial craving. The law has made it inevitable
under the circumstances of this case that the accused-appellant face the supreme penalty of death. WHEREFORE, we AFFIRM the
decision of the Regional Trial Court of Quezon City, Branch 104.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 74930 February 13, 1989

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO OBLIGAR, JUN
GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO
FADUL, petitioners, 
vs.
FELICIANO BELMONTE, JR., respondent.

Ricardo C. Valmonte for and in his own behalf and his co-petitioners.

The Solicitor General for respondent.

CORTES,  J.:

Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to information and pray that respondent
be directed:

(a) to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady Imelda Marcos; and/or

(b) to furnish petitioners with certified true copies of the documents evidencing their respective
loans; and/or

(c) to allow petitioners access to the public records for the subject information. (Petition, pp. 4-5;
paragraphing supplied.]

The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter:

June 4, 1986

Hon. Feliciano Belmonte

GSIS General Manager
Arroceros, Manila

Sir:

As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be furnished with the list of
names of the opposition members of (the) Batasang Pambansa who were able to secure a clean loan of P2 million
each on guarranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila was one of those
aforesaid MPs. Likewise, may we be furnished with the certified true copies of the documents evidencing their loan.
Expenses in connection herewith shall be borne by us.

If we could not secure the above documents could we have access to them?

We are premising the above request on the following provision of the Freedom Constitution of the present regime.

The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions or decisions,
shall be afforded the citizen subject to such limitation as may be provided by law. (Art. IV, Sec. 6).

We trust that within five (5) days from receipt hereof we will receive your favorable response on the matter.

Very truly
yours,

(Sgd.)
RICARD
O C.
VALMO
NTE

[Rollo, p. 7.]
To the aforesaid letter, the Deputy General Counsel of the GSIS replied:

June 17, 1986

Atty. Ricardo C. Valmonte

108 E. Benin Street
Caloocan City

Dear Compañero:

Possibly because he must have thought that it contained serious legal implications, President & General Manager
Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of June 4, 1986 requesting a list of the
opposition members of Batasang Pambansa who were able to secure a clean loan of P2 million each on guaranty of
Mrs. Imelda Marcos.

My opinion in this regard is that a confidential relationship exists between the GSIS and all those who borrow from it,
whoever they may be; that the GSIS has a duty to its customers to preserve this confidentiality; and that it would not
be proper for the GSIS to breach this confidentiality unless so ordered by the courts.

As a violation of this confidentiality may mar the image of the GSIS as a reputable financial institution, I regret very
much that at this time we cannot respond positively to your request.

Very truly yours,

(Sgd.) MEYNARDO A. TIRO

Deputy General Counsel
[Rollo, p. 40.]

On June 20, 1986, apparently not having yet received the reply of the Government Service and Insurance System (GSIS) Deputy
General Counsel, petitioner Valmonte wrote respondent another letter, saying that for failure to receive a reply, "(W)e are now
considering ourselves free to do whatever action necessary within the premises to pursue our desired objective in pursuance of public
interest." [Rollo, p. 8.]

On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.

On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of the defunct interim and regular
Batasang Pambansa, including ten (10) opposition members, were granted housing loans by the GSIS [Rollo, p. 41.]

Separate comments were filed by respondent Belmonte and the Solicitor General. After petitioners filed a consolidated reply, the
petition was given due course and the parties were required to file their memoranda. The parties having complied, the case was
deemed submitted for decision.

In his comment respondent raises procedural objections to the issuance of a writ of mandamus, among which is that petitioners have
failed to exhaust administrative remedies.

Respondent claims that actions of the GSIS General Manager are reviewable by the Board of Trustees of the GSIS. Petitioners,
however, did not seek relief from the GSIS Board of Trustees. It is therefore asserted that since administrative remedies were not
exhausted, then petitioners have no cause of action.

To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not they are entitled to the documents
sought, by virtue of their constitutional right to information. Hence, it is argued that this case falls under one of the exceptions to the
principle of exhaustion of administrative remedies.

Among the settled principles in administrative law is that before a party can be allowed to resort to the courts, he is expected to have
exhausted all means of administrative redress available under the law. The courts for reasons of law, comity and convenience will not
entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given
opportunity to act and correct the errors committed in the administrative forum. However, the principle of exhaustion of administrative
remedies is subject to settled exceptions, among which is when only a question of law is involved [Pascual v. Provincial Board, 106
Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270,
May 21, 1984, 129 SCRA 359.] The issue raised by petitioners, which requires the interpretation of the scope of the constitutional right
to information, is one which can be passed upon by the regular courts more competently than the GSIS or its Board of Trustees,
involving as it does a purely legal question. Thus, the exception of this case from the application of the general rule on exhaustion of
administrative remedies is warranted. Having disposed of this procedural issue, We now address ourselves to the issue of whether or
not mandamus hes to compel respondent to perform the acts sought by petitioners to be done, in pursuance of their right to
information.

We shall deal first with the second and third alternative acts sought to be done, both of which involve the issue of whether or not
petitioners are entitled to access to the documents evidencing loans granted by the GSIS.

This is not the first time that the Court is confronted with a controversy directly involving the constitutional right to information.
In Tañada v. Tuvera, G.R. No. 63915, April 24,1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service Commission, G.R.
No. 72119, May 29, 1987,150 SCRA 530, the Court upheld the people's constitutional right to be informed of matters of public interest
and ordered the government agencies concerned to act as prayed for by the petitioners.

The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:
 The right of the people to information on matters of public concern shall be recognized. Access to official records, and
to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.

The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of which provided:

The right of the people to information on 'matters of public concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizen
subject to such limitations as may be provided by law.

An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free
exchange of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution. The
cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental
agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner
workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated.
The postulate of public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of
governmental power, would certainly be were empty words if access to such information of public concern is denied, except under
limitations prescribed by implementing legislation adopted pursuant to the Constitution.

Petitioners are practitioners in media. As such, they have both the right to gather and the obligation to check the accuracy of
information the disseminate. For them, the freedom of the press and of speech is not only critical, but vital to the exercise of their
professions. The right of access to information ensures that these freedoms are not rendered nugatory by the government's
monopolizing pertinent information. For an essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State that the channels for free political discussion
be maintained to the end that the government may perceive and be responsive to the people's will. Yet, this open dialogue can be
effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the
discussion are aware of the issues and have access to information relating thereto can such bear fruit.

The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to
information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press.
Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure  * and honesty in the public service.  ** It is
meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government.

Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi, the people's right to information
is limited to "matters of public concern," and is further "subject to such limitations as may be provided by law." Similarly, the State's
policy of full disclosure is limited to "transactions involving public interest," and is "subject to reasonable conditions prescribed by law."

Hence, before mandamus may issue, it must be clear that the information sought is of "public interest" or "public concern," and is not
exempted by law from the operation of the constitutional guarantee [Legazpi v. Civil Service Commission, supra,  at p. 542.]

The Court has always grappled with the meanings of the terms "public interest" and "public concern". As observed in Legazpi:

In determining whether or not a particular information is of public concern there is no rigid test which can be applied.
"Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of
subjects which the public may want to know, either because these directly affect their lives, or simply because such
matters naturally arouse the interest of an ordinary citezen. In the final analysis, it is for the courts to determine on a
case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. [Ibid.
at p. 541]

In the Tañada case the public concern deemed covered by the constitutional right to information was the need for adequate notice to
the public of the various laws which are to regulate the actions and conduct of citezens. In Legaspi, it was the "legitimate concern of
citezensof ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles" [Supra at
p. 539.]

The information sought by petitioners in this case is the truth of reports that certain Members of the Batasang Pambansa belonging to
the opposition were able to secure "clean" loans from the GSIS immediately before the February 7, 1986 election through the
intercession of th eformer First Lady, Mrs. Imelda Marcos.

The GSIS is a trustee of contributions from the government and its employees and the administrator of various insurance programs for
the benefit of the latter. Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as
amended (the Revised Government Service Insurance Act of 1977), provide for annual appropriations to pay the contributions,
premiums, interest and other amounts payable to GSIS by the government, as employer, as well as the obligations which the Republic
of the Philippines assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected to manage its resources
with utmost prudence and in strict compliance with the pertinent laws or rules and regulations. Thus, one of the reasons that prompted
the revision of the old GSIS law (C.A. No. 186, as amended) was the necessity "to preserve at all times the actuarial solvency of the
funds administered by the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent himself admits, the GSIS
"is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is therefore the legitimate concern of the public to ensure that these funds
are managed properly with the end in view of maximizing the benefits that accrue to the insured government employees. Moreover, the
supposed borrowers were Members of the defunct Batasang Pambansa who themselves appropriated funds for the GSIS and were
therefore expected to be the first to see to it that the GSIS performed its tasks with the greatest degree of fidelity and that an its
transactions were above board.

In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information
sought clearly a matter of public interest and concern.

A second requisite must be met before the right to information may be enforced through mandamus proceedings, viz., that the
information sought must not be among those excluded by law.
Respondent maintains that a confidential relationship exists between the GSIS and its borrowers. It is argued that a policy of
confidentiality restricts the indiscriminate dissemination of information.

Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the documents subject of this
petition. His position is apparently based merely on considerations of policy. The judiciary does not settle policy issues. The Court can
only declare what the law is, and not what the law should be. Under our system of government, policy issues are within the domain of
the political branches of the government, and of the people themselves as the repository of all State power.

Respondent however contends that in view of the right to privacy which is equally protected by the Constitution and by existing laws,
the documents evidencing loan transactions of the GSIS must be deemed outside the ambit of the right to information.

There can be no doubt that right to privacy is constitutionally protected. In the landmark case of Morfe v. Mutuc [130 Phil. 415 (1968),
22 SCRA 424], this Court, speaking through then Mr. Justice Fernando, stated:

... The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited
government has always included the idea that governmental powers stop short of certain intrusions into the personal
life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. UItimate and
pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute. state, In contrast, a system
of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the
public sector, which the state can control. Protection of this private sector — protection, in other words, of the dignity
and integrity of the individual — has become increasingly important as modem society has developed. All the forces
of technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and
facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society." [at pp. 444-445.]

When the information requested from the government intrudes into the privacy of a citizen, a potential conflict between the rights to
information and to privacy may arise. However, the competing interests of these rights need not be resolved in this case. Apparent from
the above-quoted statement of the Court in Morfe  is that the right to privacy belongs to the individual in his private capacity, and not to
public and governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the GSIS. As held in the
case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name since the entire
basis of the right to privacy is an injury to the feelings and sensibilities of the party and a corporation would have no such ground for
relief.

Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its borrowers. The right is purely
personal in nature [Cf. Atkinson v. John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis, 147 N.Y.
434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked only by the person whose privacy is claimed to be violated.

It may be observed, however, that in the instant case, the concerned borrowers themselves may not succeed if they choose to invoke
their right to privacy, considering the public offices they were holding at the time the loans were alleged to have been granted. It cannot
be denied that because of the interest they generate and their newsworthiness, public figures, most especially those holding
responsible positions in government, enjoy a more limited right to privacy as compared to ordinary individuals, their actions being
subject to closer public scrutiny [Cf.Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See
also Cohen v. Marx, 211 P. 2d 321 (1949).]

Respondent next asserts that the documents evidencing the loan transactions of the GSIS are private in nature and hence, are not
covered by the Constitutional right to information on matters of public concern which guarantees "(a)ccess to official records, and to
documents, and papers pertaining to official acts, transactions, or decisions" only.

It is argued that the records of the GSIS, a government corporation performing proprietary functions, are outside the coverage of the
people's right of access to official  records.

It is further contended that since the loan function of the GSIS is merely incidental to its insurance function, then its loan transactions
are not covered by the constitutional policy of full public disclosure and the right to information which is applicable only to "official"
transactions.

First of all, the "constituent — ministrant" dichotomy characterizing government function has long been repudiated. In ACCFA v.
Confederation of Unions and Government Corporations and Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA
6441, the Court said that the government, whether carrying out its sovereign attributes or running some business, discharges the same
function of service to the people.

Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify the exclusion of the
transactions from the coverage and scope of the right to information.

Moreover, the intent of the members of the Constitutional Commission of 1986, to include government-owned and controlled
corporations and transactions entered into by them within the coverage of the State policy of fun public disclosure is manifest from the
records of the proceedings:

xxx xxx xxx

THE PRESIDING OFFICER (Mr. Colayco).

Commissioner Suarez is recognized.

MR. SUAREZ. Thank you. May I ask the Gentleman a few question?

MR. OPLE. Very gladly.

 MR. SUAREZ. Thank you.

When we declare a "policy of full public disclosure of all its transactions" — referring to the
transactions of the State — and when we say the "State" which I suppose would include all of the
various agencies, departments, ministries and instrumentalities of the government....

MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.

MR. SUAREZ. Including government-owned and controlled corporations.

MR. OPLE. That is correct, Mr. Presiding Officer.

MR. SUAREZ. And when we say "transactions" which should be distinguished

from contracts, agreements, or treaties or whatever, does the Gentleman refer to
the steps leading to the consummation of the contract, or does he refer to the
contract itself?

MR. OPLE. The "transactions" used here I suppose is generic and, therefore, it
can cover both steps leading to a contract, and already a consummated contract,
Mr. Presiding Officer.

MR. SUAREZ. This contemplates inclusion of negotiations leading to the

consummation of the transaction.

MR. OPLE. Yes, subject only to reasonable safeguards on the national interest.

MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.]

(Emphasis supplied.)

Considering the intent of the framers of the Constitution which, though not binding upon the Court, are nevertheless persuasive, and
considering further that government-owned and controlled corporations, whether performing proprietary or governmental functions are
accountable to the people, the Court is convinced that transactions entered into by the GSIS, a government-controlled corporation
created by special legislation are within the ambit of the people's right to be informed pursuant to the constitutional policy of
transparency in government dealings.

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to reasonable regulations that
the latter may promulgate relating to the manner and hours of examination, to the end that damage to or loss of the records may be
avoided, that undue interference with the duties of the custodian of the records may be prevented and that the right of other persons
entitled to inspect the records may be insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil.
383, 387.] The petition, as to the second and third alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish petitioners the list of the names of
the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before
the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos."

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the Constitution
does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to
acquire information on matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear and certain legal right
to the thing demanded and that it is the imperative duty of defendant to perform the act required. The corresponding duty of the
respondent to perform the required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA
203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this standard,
there being no duty on the part of respondent to prepare the list requested.

WHEREFORE, the instant petition is hereby granted and respondent General Manager of the Government Service Insurance System is
ORDERED to allow petitioners access to documents and records evidencing loans granted to Members of the former Batasang
Pambansa, as petitioners may specify, subject to reasonable regulations as to the time and manner of inspection, not incompatible with
this decision, as the GSIS may deem necessary.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 80806 October 5, 1989

LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner, 
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.

William C. Arceno for petitioner.

Casibang, Perello and De Dios for private respondent.

SARMIENTO, J.:

The petitioner, publisher of Pinoy Playboy, a "men's magazine", seeks the review of the decision of the Court of Appeals,   rejecting his
1

appeal from the decision of the Regional Trial Court, dismissing his complaint for injunctive relief. He invokes, in particular, the guaranty
against unreasonable searches and seizures of the Constitution, as well as its prohibition against deprivation of property without due
process of law. There is no controversy as to the facts. We quote:

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City of Manila, Ramon D.
Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services Bureau, Western Police District, INP of
the Metropolitan Police Force of Manila, seized and confiscated from dealers, distributors, newsstand owners and
peddlers along Manila sidewalks, magazines, publications and other reading materials believed to be obscene,
pornographic and indecent and later burned the seized materials in public at the University belt along C.M. Recto
Avenue, Manila, in the presence of Mayor Bagatsing and several officers and members of various student
organizations.

Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and co-edited by plaintiff
Leo Pita.

On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of preliminary injunction
against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of the City of Manila,
seeking to enjoin and/or restrain said defendants and their agents from confiscating plaintiffs magazines or from
otherwise preventing the sale or circulation thereof claiming that the magazine is a decent, artistic and educational
magazine which is not per se obscene, and that the publication is protected by the Constitutional guarantees of
freedom of speech and of the press.

By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary injunction on December
14,1983 and ordered the defendants to show cause not later than December 13, 1983 why the writ prayed for should
not be granted.

On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining order. against
indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines, pending hearing on the
petition for preliminary injunction in view of Mayor Bagatsing's pronouncement to continue the Anti-Smut Campaign.
The Court granted the temporary restraining order on December 14, 1983.

In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted the confiscation and
burning of obscence reading materials on December 1 and 3, 1983, but claimed that the said materials were
voluntarily surrendered by the vendors to the police authorities, and that the said confiscation and seizure was (sic)
undertaken pursuant to P.D. No. 960, as amended by P.D. No. 969, which amended Article 201 of the Revised Penal
Code. In opposing the plaintiffs application for a writ of preliminary injunction, defendant pointed out that in that anti-
smut campaign conducted on December 1 and 3, 1983, the materials confiscated belonged to the magazine stand
owners and peddlers who voluntarily surrendered their reading materials, and that the plaintiffs establishment was not
raided.

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.

On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of preliminary injunction,
raising the issue as to "whether or not the defendants and/or their agents can without a court order confiscate or
seize plaintiffs magazine before any judicial finding is made on whether said magazine is obscene or not".

The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff filed an urgent
motion for issuance of another restraining order, which was opposed by defendant on the ground that issuance of a
second restraining order would violate the Resolution of the Supreme Court dated January 11, 1983, providing for the
Interim Rules Relative to the Implementation of Batas Pambansa Blg. 129, which provides that a temporary
restraining order shall be effective only for twenty days from date of its issuance.

On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of his opposition to the
issuance of a writ of preliminary injunction.

On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16, 1984 "for the parties
to adduce evidence on the question of whether the publication 'Pinoy Playboy Magazine alleged (sic) seized,
confiscated and/or burned by the defendants, are obscence per se or not".

On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to file a reply to
defendants' opposition dated January 9, 1984, serving a copy thereof to the counsel for the defendants, who may file
a rejoinder within the same period from receipt, after which the issue of Preliminary Injunction shall be resolved".

Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment on plaintiff s
supplemental Memorandum on January 20, 1984, and plaintiff filed his "Reply-Memorandum" to defendants'
Comment on January 25, 1984.

On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a writ of preliminary
injunction, and dismissing the case for lack of merit. 2
The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:

We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscene publications or
materials deserves close scrutiny because of the constitutional guarantee protecting the right to express oneself in
print (Sec. 9, Art. IV), and the protection afforded by the constitution against unreasonable searches and seizure
(Sec. 3, Art.IV). It must be equally conceded, however, that freedom of the press is not without restraint as the state
has the right to protect society from pornographic literature that is offensive to public morals, as indeed we have laws
punishing the author, publishers and sellers of obscene publications (Sec. I , Art. 201, Revised Penal Code, as
amended by P.D. No. 960 and P.D. No. 969). Also well settled is the rule that the right against unreasonable
searches and seizures recognizes certain exceptions, as when there is consent to the search or seizure, (People vs.
Malesugui 63 Phil. 22) or search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76
Phil. 637) or is conducted in a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857). 3

The petitioner now ascribes to the respondent court the following errors:

1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the police officers
could without any court warrant or order seize and confiscate petitioner's magazines on the basis simply of their
determination that they are obscene.

2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the trial court could
dismiss the case on its merits without any hearing thereon when what was submitted to it for resolution was merely
the application of petitioner for the writ of preliminary injunction.
4

The Court states at the outset that it is not the first time that it is being asked to pronounce what "obscene" means or what makes for an
obscene or pornographic literature. Early on, in People vs. Kottinger,  the Court laid down the test, in determining the existence of
5

obscenity, as follows: "whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to
such immoral influences and into whose hands a publication or other article charged as being obscene may fall."   "Another test,"
6

so Kottinger further declares, "is that which shocks the ordinary and common sense of men as an indecency. "   Kottinger  hastened to
7

say, however, that "[w]hether a picture is obscene or indecent must depend upon the circumstances of the case,   and that ultimately,
8

the question is to be decided by the "judgment of the aggregate sense of the community reached by it."  9

Yet Kottinger, in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a problem that has grown increasingly
complex over the years. Precisely, the question is: When does a publication have a corrupting tendency, or when can it be said to be
offensive to human sensibilities? And obviously, it is to beg the question to say that a piece of literature has a corrupting
influence because  it is obscene, and vice-versa.

Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the final say to a hypothetical
"community standard" — whatever that is — and that the question must supposedly be judged from case to case.

About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201 of the Revised Penal Code. Go
Pin, was also even hazier:

...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in art exhibit and
art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense
committed. However, the pictures here in question were used not exactly for art's sake but rather for commercial
purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause
of art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid
entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who generally go
to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their
morbid curiosity and taste, and lust, and for love for excitement, including the youth who because of their immaturity
are not in a position to resist and shield themselves from the ill and perverting effects of these pictures. 11

xxx xxx xxx

As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. It is easier said than
done to say, indeed, that if "the pictures here in question were used not exactly for art's sake but rather for commercial purposes,"   the12

pictures are not entitled to any constitutional protection.

It was People v. Padan y Alova ,  however, that introduced to Philippine jurisprudence the "redeeming" element that should accompany
13

the work, to save it from a valid prosecution. We quote:

...We have had occasion to consider offenses like the exhibition of still or moving pictures of women in the nude,
which we have condemned for obscenity and as offensive to morals. In those cases, one might yet claim that there
was involved the element of art; that connoisseurs of the same, and painters and sculptors might find inspiration in
the showing of pictures in the nude, or the human body exhibited in sheer nakedness, as models in tableaux vivants.
But an actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it,
there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to
public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence
specially on the youth of the land. ...
14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was attended by "artists and
persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes,"  could the
15

same legitimately lay claim to "art"? For another, suppose that the exhibition was so presented that "connoisseurs of [art], and painters
and sculptors might find inspiration,"  in it, would it cease to be a case of obscenity?
16

Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an ad lib of Ideas and "two-cents
worths" among judges as to what is obscene and what is art.
In a much later decision, Gonzalez v. Kalaw Katigbak,  the Court, following trends in the United States, adopted the test: "Whether to
17

the average person, applying contemporary standards, the dominant theme of the material taken as a whole appeals to prurient
interest."  Kalaw-Katigbak  represented a marked departure from Kottinger in the sense that it measured obscenity in terms of the
18

"dominant theme" of the work, rather than isolated passages, which were central to Kottinger (although both cases are agreed that
"contemporary community standards" are the final arbiters of what is "obscene"). Kalaw-Katigbak undertook moreover to make the
determination of obscenity essentially a judicial question and as a consequence, to temper the wide discretion Kottinger had given unto
law enforcers.

It is significant that in the United States, constitutional law on obscenity continues to journey from development to development, which,
states one authoritative commentator (with ample sarcasm), has been as "unstable as it is unintelligible." 19

Memoirs v. Massachusettes,  a 1966 decision, which characterized obscenity as one "utterly without any redeeming social
20

value,"  marked yet another development.

21

The latest word, however, is Miller v. California,  which expressly abandoned Massachusettes, and established "basic guidelines,"  to
22 23

wit: "(a) whether 'the average person, applying contemporary standards' would find the work, taken as a whole, appeals to the prurient
interest . . .; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable
state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
24

(A year later, the American Supreme Court decided Hamling v. United States   which repeated Miller, and Jenkins v. Georgia,   yet
25 26

another reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion picture, Carnal Knowledge, in the absence of
"genitals" portrayed on screen, although the film highlighted contemporary American sexuality.)

The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to the reluctance of the courts to
recognize the constitutional dimension of the problem .  Apparently, the courts have assumed that "obscenity" is not included in the
27

guaranty of free speech, an assumption that, as we averred, has allowed a climate of opinions among magistrates predicated upon
arbitrary, if vague theories of what is acceptable to society. And "[t]here is little likelihood," says Tribe, "that this development has
reached a state of rest, or that it will ever do so until the Court recognizes that obscene speech is speech nonetheless, although it is
subject — as in all speech — to regulation in the interests of [society as a whole] — but not in the interest of a uniform vision of how
human sexuality should be regarded and portrayed." 28

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police power, to suppress smut provided it
is smut. For obvious reasons, smut is not smut simply because one insists it is smut. So is it equally evident that individual tastes
develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. What shocked our forebears, say, five
decades ago, is not necessarily repulsive to the present generation. James Joyce and D.H. Lawrence were censored in the thirties yet
their works are considered important literature today.  Goya's La Maja desnuda  was once banned from public exhibition but now
29

adorns the world's most prestigious museums.

But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said earlier, it is the divergent
perceptions of men and women that have probably compounded the problem rather than resolved it.

What the Court is impressing, plainly and simply, is that the question is not, and has not been, an easy one to answer, as it is far from
being a settled matter. We share Tribe's disappointment over the discouraging trend in American decisional law on obscenity as well as
his pessimism on whether or not an "acceptable" solution is in sight.

In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect" definition of "obscenity", if that is
possible, as evolving standards for proper police conduct faced with the problem, which, after all, is the plaint specifically raised in the
petition.

However, this much we have to say.

Undoubtedly, "immoral" lore or literature comes within the ambit of free expression, although not its protection. In free expression
cases, this Court has consistently been on the side of the exercise of the right, barring a "clear and present danger" that would warrant
State interference and action.  But, so we asserted in Reyes v. Bagatsing, "the burden to show the existence of grave and imminent
30 31

danger that would justify adverse action ... lies on the. . . authorit[ies]."
32

"There must be objective and convincing, not subjective or conjectural, proof of the existence of such clear and present danger."  "It 33

is essential for the validity of ... previous restraint or censorship that the ... authority does not rely solely on his own appraisal of what
the public welfare, peace or safety may require." 34

"To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the clear and present danger test." 35

The above disposition must not, however, be taken as a neat effort to arrive at a solution-so only we may arrive at one-but rather as a
serious attempt to put the question in its proper perspective, that is, as a genuine constitutional issue.

It is also significant that in his petition, the petitioner asserts constitutional issues, mainly, due process and illegal search and seizure.

As we so strongly stressed in Bagatsing, a case involving the delivery of a political speech, the presumption is that the speech may
validly be said. The burden is on the State to demonstrate the existence of a danger, a danger that must not only be: (1) clear but also,
(2) present, to justify State action to stop the speech. Meanwhile, the Government must allow it (the speech). It has no choice.
However, if it acts notwithstanding that (absence of evidence of a clear and present danger), it must come to terms with, and be held
accountable for, due process.

The Court is not convinced that the private respondents have shown the required proof to justify a ban and to warrant confiscation of
the literature for which mandatory injunction had been sought below. First of all, they were not possessed of a lawful court order: (1)
finding the said materials to be pornography, and (2) authorizing them to carry out a search and seizure, by way of a search warrant.
The Court of Appeals has no "quarrel that ... freedom of the press is not without restraint, as the state has the right to protect society
from pornographic literature that is offensive to public morals."  Neither do we. But it brings us back to square one: were the "literature"
36

so confiscated "pornographic"? That we have laws punishing the author, publisher and sellers of obscence publications (Sec. 1, Art.
201, Revised Penal Code, as amended by P.D. No. 960 and P.D. No. 969),"  is also fine, but the question, again, is: Has the petitioner
37

been found guilty under the statute?

The fact that the former respondent Mayor's act was sanctioned by "police power" is no license to seize property in disregard of due
process. In Philippine Service Exporters, Inc. v. Drilon,  We defined police power as "state authority to enact legislation that may
38

interfere with personal liberty or property in order to promote the general welfare ."  Presidential Decrees Nos. 960 and 969 are,
39

arguably, police power measures, but they are not, by themselves, authorities for high-handed acts. They do not exempt our law
enforcers, in carrying out the decree of the twin presidential issuances (Mr. Marcos'), from the commandments of the Constitution, the
right to due process of law and the right against unreasonable searches and seizures, specifically. Significantly, the Decrees
themselves lay down procedures for implementation. We quote:

Sec. 2. Disposition of the Prohibited Articles. — The disposition of the literature, films, prints, engravings, sculptures,
paintings, or other materials involved in the violation referred to in Section 1 hereof (Art. 201), RPC as amended)
shall be governed by the following rules:

(a) Upon conviction of the offender, to be forfeited in favor of the Government to be destroyed.

(b) Where the criminal case against any violator of this decree results in an acquittal, the obscene/immoral literature,
films, prints, engravings, sculptures, paintings or other materials and articles involved in the violation referred to in
Section 1 (referring to Art. 201) hereof shall nevertheless be forfeited in favor of the government to be destroyed,
after forfeiture proceedings conducted by the Chief of Constabulary.

(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15) days after his
receipt of a copy of the decision, appeal the matter to the Secretary of National Defense for review. The decision of
the Secretary of National Defense shall be final and unappealable. (Sec. 2, PD No, 960 as amended by PD No. 969.)

Sec. 4. Additional Penalties. — Additional penalties shall be imposed as follows:

1. In case the offender is a government official or employee who allows the violations of Section I hereof, the penalty
as provided herein shall be imposed in the maximum period and, in addition, the accessory penalties provided for in
the Revised Penal Code, as amended, shall likewise be imposed . 40

Under the Constitution, on the other hand:

SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible
officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched, and the persons or things to be seized.

It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable and subject
to challenge. In Burgos v. Chief of Staff, AFP,   We counter-minded the orders of the Regional Trial Court authorizing the search of the
43

premises of We Forum and Metropolitan Mail, two Metro Manila dailies, by reason of a defective warrant. We have greater reason here
to reprobate the questioned raid, in the complete absence of a warrant, valid or invalid. The fact that the instant case involves an
obscenity rap makes it no different from Burgos, a political case, because, and as we have indicated, speech is speech, whether
political or "obscene".

The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then prevailing), provide:

SEC. 12. Search without warrant of personarrested. — A person charged with an offense may be searched for
dangerous weapons or anything which may be used as proof of the commission of the offense. 44

but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must be on account of a
crime committed. Here, no party has been charged, nor are such charges being readied against any party, under Article 201, as
amended, of the Revised Penal Code.

We reject outright the argument that "[t]here is no constitutional nor legal provision which would free the accused of all criminal
responsibility because there had been no warrant,"   and that "violation of penal law [must] be punished."   For starters, there is no
45 46

"accused" here to speak of, who ought to be "punished". Second, to say that the respondent Mayor could have validly ordered the raid
(as a result of an anti-smut campaign) without a lawful search warrant because, in his opinion, "violation of penal laws" has been
committed, is to make the respondent Mayor judge, jury, and executioner rolled into one. And precisely, this is the very complaint of the
petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, an obscenity rap is
in order;

2. The authorities must convince the court that the materials sought to be seized are "obscene", and pose a clear and
present danger of an evil substantive enough to warrant State interference and action;

3. The judge must determine whether or not the same are indeed "obscene:" the question is to be resolved on a
case-to-case basis and on His Honor's sound discretion.
 4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;

5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code;

6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are
indeed "obscene".

These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power
under the Civil Code"   or the Revised Penal code .
47 48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET ASIDE. It appearing, however,
that the magazines subject of the search and seizure ave been destroyed, the Court declines to grant affirmative relief. To that extent,
the case is moot and academic.

SO ORDERED.

Melencio-Herrera, Cruz, Paras, Gancayco, Padilla, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Fernan (C.J.), Narvasa and Feliciano, JJ., concur in the result.

Gutierrez, Jr., J., is on leave.

THIRD DIVISION

G.R. No. 159751             December 6, 2006

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners, 

vs.
COURT OF APPEALS, respondent.

DECISION

QUISUMBING, J.:
This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the Resolution dated September 2, 2003, of the
Court of Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in
Criminal Case No. 99-176582.

The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 2012 of the Revised Penal Code, as amended
by Presidential Decree Nos. 960 and 969, and sentenced each to imprisonment of four (4) years and one (1) day to six (6) years
of prision correccional, and to pay the fine of P6,000 and cost of suit.

The facts as culled from the records are as follows.

Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police Criminal Investigation and
Detection Group in the National Capital Region (PNP-CIDG NCR) conducted police surveillance on the store bearing the name of
Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch
19, issued Search Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code against petitioner Gaudencio E.
Fernando and a certain Warren Tingchuy. The warrant ordered the search of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd.,
corner Zigay Street, Quiapo, Manila, and the seizure of the following items:

a. Copies of New Rave Magazines with nude obscene pictures;

b. Copies of IOU Penthouse Magazine with nude obscene pictures;

c. Copies of Hustler International Magazine with nude obscene pictures; and

d. Copies of VHS tapes containing pornographic shows.3

On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the prosecution,
introduced himself as the store attendant of Music Fair. The police searched the premises and confiscated twenty-five (25) VHS tapes
and ten (10) different magazines, which they deemed pornographic.

On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which reads as follows:

That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully,
feloniously, publicly and jointly exhibit indecent or immoral acts, scenes or shows at Music Fair, located at 564 Quezon Blvd.,
corner Zigay [S]t., Quiapo[,] this City[,] by then and there selling and exhibiting obscene copies of x-rated VHS Tapes, lewd
films depicting men and women having sexual intercourse[,] lewd photographs of nude men and women in explicating (sic)
positions which acts serve no other purpose but to satisfy the market for lust or pornography to public view.

Contrary to law.4

When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial ensued.

The prosecution offered the confiscated materials in evidence and presented the following witnesses: Police Inspector Rodolfo L.
Tababan, SPO4 Rolando Buenaventura and Barangay Chairperson Socorro Lipana, who were all present during the raid. After the
prosecution presented its evidence, the counsel for the accused moved for leave of court to file a demurrer to evidence, which the court
granted. On October 5, 2000, the RTC however denied the demurrer to evidence and scheduled the reception of evidence for the
accused. A motion for reconsideration was likewise denied.

Thereafter, the accused waived their right to present evidence and instead submitted the case for decision.5

The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as follows:

WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and RUDY ESTORNINOS GUILTY
beyond reasonable doubt of the crime charged and are hereby sentenced to suffer the indeterminate penalty of FOUR (4)
YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of prision correccional as maximum, to pay fine of P6,000.00 each
and to pay the cost.

For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond reasonable doubt, he is hereby
ACQUITTED of the crime charged.

The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated in favor of the
government.

SO ORDERED.6

Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the decision of the trial court, as follows,

WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed from is AFFIRMED IN TOTO.

Costs against accused-appellants.

SO ORDERED.7

Hence the instant petition assigning the following errors:

 I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid

II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid.8

Simply, the issue in this case is whether the appellate court erred in affirming the petitioners’ conviction.

Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials.
Fernando contends that since he was not charged as the owner of an establishment selling obscene materials, the prosecution must
prove that he was present during the raid and that he was selling the said materials. Moreover, he contends that the appellate court’s
reason for convicting him, on a presumption of continuing ownership shown by an expired mayor’s permit, has no sufficient basis since
the prosecution failed to prove his ownership of the establishment. Estorninos, on the other hand, insists that he was not an attendant
in Music Fair, nor did he introduce himself so.9

The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article 201,
and petitioner Fernando’s ownership was sufficiently proven. As the owner, according to the Solicitor General, Fernando was naturally
a seller of the prohibited materials and liable under the Information. The Solicitor General also maintains that Estorninos was identified
by Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise liable.10

At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present their evidence to disprove refute the
prosecution’s evidence.11 . Instead, they waived their right to present evidence and opted to submitted the case for decision.a1 12 The trial
court therefore resolved the case on the basis of prosecution’s evidence against the petitioners.

As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens
patriae, the public from obscene, immoral and indecent materials must justify the regulation or limitation.

One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a) the materials,
publication, picture or literature are obscene; and (b) the offender sold, exhibited, published or gave away such materials.13 Necessarily,
that the confiscated materials are obscene must be proved.

Almost a century has passed since the Court first attempted to define obscenity in People v. Kottinger.14  There the Court defined
obscenity as something which is offensive to chastity, decency or delicacy. The test to determine the existence of obscenity is, whether
the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and
into whose hands a publication or other article charged as being obscene may fall.15 Another test according to Kottinger  is "that which
shocks the ordinary and common sense of men as an indecency."16 But, Kottinger  hastened to say that whether a picture is obscene or
indecent must depend upon the circumstances of the case, and that ultimately, the question is to be decided by the judgment of the
aggregate sense of the community reached by it.17

Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a prosecution under Article 201 of the
Revised Penal Code, laid the tests which did little to clearly draw the fine lines of obscenity.

In People v. Go Pin, the Court said:

If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and
appreciated by people interested in art, there would be no offense committed. However, the pictures here in question were
used not exactly for art’s sake but rather for commercial purposes. In other words, the supposed artistic qualities of said
pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain and profit would
appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons
who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather
people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of] excitement, including the youth who
because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these
pictures.20

People v. Padan y Alova, et al.  in a way reaffirmed the standards set in Go Pin but with its own test of "redeeming feature." The Court
therein said that:

[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no
room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals,
inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of
the land.21

Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still applied the "contemporary
community standards" of Kottinger  but departed from the rulings of Kottinger, Go Pin and Padan y Alova in that the Court measures
obscenity in terms of the "dominant theme" of the material taken as a "whole" rather than in isolated passages.

Later, in Pita v. Court of Appeals, concerning alleged pornographic publications,  the Court recognized that Kottinger  failed to afford a
conclusive definition of obscenity, and that both Go Pin  and Padan y Alova raised more questions than answers such as, whether the
absence or presence of artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve
their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether such exhibitions cease to be
obscene.23 Go Pin and Padan y Alova  gave too much latitude for judicial arbitrament, which has permitted ad lib of ideas and "two-
cents worths" among judges as to what is obscene or what is art.24

The Court in Pita also  emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how
jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all. It is
evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization.25 It
seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases.
There is no perfect definition of "obscenity" but the latest word is that of Miller v. California  which established basic guidelines, to wit:
(a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient
interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable
state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.26 But, it would be a
serious misreading of Miller  to conclude that the trier of facts has the unbridled discretion in determining what is "patently
offensive."27 No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or
describe patently offensive "hard core" sexual conduct.28 Examples included (a) patently offensive representations or descriptions of
ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibition of the genitals.29 What remains clear is that obscenity is an issue proper for
judicial determination and should be treated on a case to case basis and on the judge’s sound discretion.

In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. The trial court in
ruling that the confiscated materials are obscene, reasoned as follows:

Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to morals? . . .

Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated magazines namely Dalaga,
Penthouse, Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are offensive to morals and are made and
shown not for the sake of art but rather for commercial purposes, that is gain and profit as the exclusive consideration in their
exhibition. The pictures in the magazine exhibited indecent and immoral scenes and acts…The exhibition of the sexual act in
their magazines is but a clear and unmitigated obscenity, indecency and an offense to public morals, inspiring…lust and
lewdness, exerting a corrupting influence especially on the youth. (Citations omitted)

The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled "Kahit sa Pangarap Lang"
with Myra Manibog as the actress shows the naked body of the actress. The tape exhibited indecent and immoral scenes and
acts. Her dancing movements excited the sexual instinct of her male audience. The motive may be innocent, but the
performance was revolting and shocking to good minds...

In one (1) case the Supreme Court ruled:

Since the persons who went to see those pictures and paid entrance fees were usually not artists or persons
interested in art to satisfy and inspire their artistic tastes but persons who are desirous of satisfying their morbid
curiosity, taste and lust and for [love] of excitement, including the youth who because of their immaturity are not in a
position to resist and shield themselves from the ill and perverting effects of the pictures, the display of such pictures
for commercial purposes is a violation of Art. 201. If those pictures were shown in art exhibits and art galleries for the
cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed (People
vs. Go Pin, 97 Phil 418).

[B]ut this is not so in this case.30

Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless such
findings are patently unsupported by the evidence on record or the judgment itself is based on misapprehension of facts.31 In this case,
petitioners neither presented contrary evidence nor questioned the trial court’s findings. There is also no showing that the trial court, in
finding the materials obscene, was arbitrary.

Did petitioners participate in the distribution and exhibition of obscene materials?

We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under
Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of
the forms under Article 201 is committed only when there is publicity.32The law does not require that a person be caught in the act of
selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are offered for sale, displayed or
exhibited to the public. In the present case, we find that petitioners are engaged in selling and exhibiting obscene materials.

Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named after petitioner Fernando.33 The
mayor’s permit was under his name. Even his bail bond shows that Hhe lives in the same place.34 Moreover, the mayor’s permit dated
August 8, 1996, shows that he is the owner/operator of the store.35 While the mayor’s permit had already expired, it does not negate the
fact that Fernando owned and operated the establishment. It would be absurd to make his failure to renew his business permit and
illegal operation a shield from prosecution of an unlawful act. Furthermore, when he preferred not to present contrary evidence, the
things which he possessed were presumptively his.36

Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials.
Prosecution witness Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the store
attendant upon whom the search warrant was served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold
the presumption of regularity in the performance of his duties. Lastly, this Court accords great respect to and treats with finality the
findings of the trial court on the matter of credibility of witnesses, absent any palpable error or arbitrariness in their findings.38 In our
view, no reversible error was committed by the appellate court as well as the trial court in finding the herein petitioners guilty as
charged.

WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals affirming the
Decision of the Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are hereby AFFIRMED.

SO ORDERED.

Carpio, Carpio Morales, Tinga, and Velasco, Jr., JJ., concur.

 SECOND DIVISION

March 22, 2017

G.R. No. 227398

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee 

vs
ANASTACIO HEMENTIZA y DELA CRUZ, Accused-Appellant

DECISION

MENDOZA, J.:
This is an appeal from the October 16, 2015 Decision  of the Court of Appeals (CA)  in CA-G.R. CR-HC No. 06847, which affirmed the
1

January 29, 2014 Decision  of the Regional Trial Court, Branch 73, Antipolo City (RTC) in Criminal Case Nos. 03-25726 and 03-25727,
2

finding Anastacio Hementiza y  Dela Cruz (accused-appellant)  guilty of violation of Sections 5 and 11, Article II of Republic
Act (R.A.)  No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002.

The Antecedents

On May 27, 2003, accused-appellant was charged in two (2) separate Informations before the RTC. In Criminal Case No. 03-25726,
accused-appellant was charged with possession of shabu in violation of Section 11, Article II of R.A. No. 9165. The Informations read:

That on or about the 25th day of May 2003, in the City of Antipolo, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, without having been lawfully authorized by law, did, then and there wilfully, unlawfully and feloniously have in
his possession, custody and control two (2) heat sealed transparent plastic sachets containing 0.03 and 0.06 gram of white crystalline
substance or with total weight of 0.09 gram, which after the corresponding laboratory examination conducted thereon by the PNP Crime
Laboratory both gave positive results to the test for Methylamphetamine Hydrochloride, also known as "shabu," a dangerous drug, in
violation of the above-cited law.

CONTRARY TO LAW. 3

In Criminal Case No. 03-25727, accused-appellant was charged with violation of Section 5, Article II of R.A. No. 9165 for the sale
of shabu. The Information states:

That on or about the 25th day of May 2003, in the City of Anti polo, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, not having been authorized by law to sell or otherwise dispose of any dangerous drug, did, then and there
wilfully, unlawfully and feloniously sell, deliver and give away to P02 Rache E. Palconit, who acted as a poseur-buyer, one (1) heat
sealed transparent plastic sachet containing 0.05 gram of white crystalline substance, for and in consideration of the sum of P200.oo,
which after the corresponding laboratory examination conducted by the PNP Crime Laboratory gave a positive result to the test for
Methylamphetamine Hydrochloride, also known as "shabu," a dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW. 4

On July 22, 2003, accused-appellant was arraigned and he pleaded not guilty. Thereafter, trial ensued with the prosecution presenting
Forensic Chemist P/Insp. Sharon Lontoc Fabros (Fabros),  P02 Rache E. Palconit (Palconit) and Barangay Captain, Dr. Rina Gabuna
Junia (Dr. Junio),as  its witnesses.

Version of the Prosecution

On May 25, 2003, at around 1:15 o'clock in the morning, Palconit, SP02 Gerry Abalos (Abalos), P02 Manuel Bayeng (Bayeng), and
P03 Russel Medina (Medina),  conducted a buy-bust operation at Sitio Lower Sto. Nifio, Barangay Sta. Cruz, Antipolo City. A
confidential informant (CI)  told them that a certain Anastacio was peddling drugs in the area. A buy-bust team was formed with Abalos
as the team leader and Palconit as the poseur-buyer. Abalos marked two (2) ₱100.00 bills for the operation. After briefing and
coordination with the local police, the team was dispatched to Barangay Sta. Cruz. Upon arrival, the CI pointed to their target person.
Palconit approached accused-appellant and asked if he could buy shabu. After receiving the marked money, accused-appellant handed
to Palconit one (1) small heat-sealed plastic sachet containing shabu.  At that point, Palconit scratched his head to signal that the sale
was consummated, and the rest of the team rushed to the scene. Abalos introduced themselves as police officers and immediately
frisked accused-appellant. Abalos recovered the marked money and two (2) other plastic sachets containing shabu from the left pocket
of accused-appellant's pants. Thereafter, accused-appellant and the seized items were brought to the Philippine Drug Enforcement
Agency (PDEA) Office in Barangay San Roque, Antipolo City. The seized items were turned over to the case investigator who prepared
the corresponding request for laboratory examination. Thereafter, Palconit brought the seized items to the crime laboratory. After
examination, Fabros issued a report confirming that the crystalline substance in the sachets were positive for methamphetamine
hydrochloride or shabu.

Version of the Defense

In his defense, accused-appellant alleged that on May 25, 2003 at around 1:15 o'clock in the morning, he was playing billiards at Sitio
Lower Sto. Niño when three (3) armed men suddenly arrived and pointed a gun at him. Without saying anything, the men frisked and
handcuffed him but found nothing illegal on him. He was arrested and brought to an office in Lores where he was detained,
interrogated, and forced to admit a wrongdoing. He was also asked to point to other persons so that he could be released.

The RTC Ruling

In its January 29, 2014 decision, the RTC found accused-appellant guilty beyond reasonable doubt of the crimes of violation of
Sections 5 and 11, Article II of R.A. No. 9165. Accordingly, the trial court sentenced him to suffer the penalty of life imprisonment and to
pay a fine of ₱500,000.00 for violation of Section 5 of R.A. No. 9165. It also sentenced him to suffer the penalty of imprisonment for a
period of twelve (12) years and one (1) day to twenty (20) years and to pay a fine of ₱300,000.00 for violation of Section 11 of R.A. No.
9165.

The R TC held that the failure of the prosecution to show that the police officers conducted the required physical inventory and
photograph of the evidence confiscated did not automatically render accused-appellant's arrest illegal or the items seized from him as
inadmissible for it was shown that the integrity and evidentiary value of the seized items were preserved by the apprehending officers. It
opined that the witnesses presented by the prosecution successfully established the chain of custody of the seized illegal drugs. The
fallo  reads:

WHEREFORE, premises considered, accused Anastacio Hementiza y Dela Cruz is hereby found guilty beyond any shadow of a doubt
of the offense charged in the Informations and is sentenced to the penalty of Life Imprisonment in Criminal Case No. 03-25727 with a
fine of Php 500,000.00 and in Criminal Case No. 03-25726, the same accused is hereby sentenced to suffer an Imprisonment of
Twelve (12) years and one (1) day to twenty (20) years with a fine of Php300,000.00 as provided for under Sec. 11 Par. (3) of RA 9165,
as amended.

Anastacio Hementiza y Dela Cruz is to be promptly committed to the National Bilibid Prisons for immediate service of his sentence.

The seized specimens subject of the instant cases are ordered destroyed in the manner provided by law.

SO ORDERED. 5

Aggrieved, accused-appellant appealed before the CA.

The CA Ruling

In its October 16, 2015 decision, the CA affirmed the conviction of accused-appellant. It explained that the police witnesses had
adequately established the conduct of the buy-bust operation which resulted in the consummated sale of the illegal drugs and the
recovery of two (2) sachets and the marked money in his possession. The CA added that prior surveillance of the suspected offender
was not a prerequisite for the validity of a buy-bust operation and that failure to strictly comply with the provisions of Section 21 (1),
Article II of R.A. No. 9165, on the handling of confiscated illegal drugs, as well as its IRR, was not fatal and would not render accused-
appellant' s arrest illegal or the items seized from him inadmissible. The CA disposed the appeal in this wise:

WHEREFORE, finding no reversible error, the appeal is DENIED. The Decision dated 29 January 2014 of the Regional Trial Court,
Branch 73, Antipolo City is AFFIRMED.

SO ORDERED. 6

Hence, this appeal.

ISSUE

WHETHER THE GUILT OF THE ACCUSED FOR THE CRIMES CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.

In a Resolution,  dated December 7, 2016, the Court required the parties to submit their respective supplemental briefs, if they so
7

desired. In his Manifestation in lieu of Supplemental Brief,  dated February 28, 2017, accused-appellant manifested that he was
8

adopting his Appellant's Brief filed before the CA as his supplemental brief for the same had adequately discussed all the matters
pertinent to his defense. In its Manifestation,  dated February 6, 2017, the Office of the Solicitor General (OSG) stated that all matters
9

and issues raised by accused-appellant had already been discussed in its Brief before the CA and asked that it be excused from filing
its supplemental brief.

The Court's Ruling

The Court grants the appeal.

The elements necessary in every prosecution for the illegal sale of dangerous drugs are: (1) the identity of the buyer and the seller, the
object and the consideration; and (2) the delivery of the thing sold and the payment. Similarly, it is essential that the transaction or sale
be proved to have actually taken place coupled with the presentation in court of evidence of corpus delicti  which means the actual
commission by someone of the particular crime charged. 10

On the other hand, to successfully prosecute a case of illegal possession of dangerous drugs, the following elements must be
established: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not
authorized by law; and (3) the accused freely and consciously possessed the drug.  11

The corpus delicti in cases involving dangerous drugs is the presentation of the dangerous drug itself. In People v. Alcuizar,  the Court
12

held:

The dangerous drug itself, the shabu  in this case, constitutes the very corpus delicti  of the offense and in sustaining a conviction under
Republic Act No. 9165, the identity and integrity of the corpus delicti must definitely be shown to have been preserved. This
requirement necessarily arises from the illegal drugs unique characteristic that renders it indistinct, not readily identifiable, and easily
open to tampering, alteration or substitution either by accident or otherwise. Thus, to remove any doubt or uncertainty on the identity
and integrity of the seized drug, evidence must definitely show that the illegal drug presented in court is the same illegal drug actually
recovered from the accused-appellant; otherwise, the prosecution for possession under Republic Act No. 9165 fails. 13

Thus, the chain of custody over the dangerous drug must be shown to establish the corpus delicti.

Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002,  which implements R.A. No. 9165, defines chain of custody
14

as follows:

Chain of Custody means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources
of dangerous drugs or laboratory equipment of each stage, from the time of seizure/ confiscation to receipt in the forensic laboratory to
safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and
signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in
the course of safekeeping and use in court as evidence, and the final disposition.

In Mallillin v. People,  the Court explained the importance of the chain of custody:
15
As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence
sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every
link in the chain, from the moment the item was picked up to the time it is offered in evidence, in such a way that every person who
touched the exhibit would describe how and from whom it was, received, where it was and what happened to it while in the witness
possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the same.

While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of
custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its
condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise
obtains in case the evidence is susceptible to alteration, tampering, contamination, and even substitution and exchange. In other words,
the exhibits level of susceptibility to fungibility, alteration or tampering without regard to whether the same is advertent or otherwise not
dictates the level of strictness in the application of the chain of custody rule.

Indeed, the likelihood of tampering, loss or mistake with respect to an exhibit is greatest when the exhibit is small and is one that has
physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives. Graham v.
State  positively acknowledged this danger. In that case where a substance was later analyzed as heroin was handled by two police
officers prior to examination who however did not testify in court on the condition and whereabouts of the exhibit at the time it was in
their possession was excluded from the prosecution evidence, the court pointing out that the white powder seized could have been
indeed heroin or it could have been sugar or baking powder. It ruled that unless the state can show by records or testimony, the
continuous whereabouts of the exhibit at least between the time it came into the posession of the police officers until it was tested in the
laboratory to determine its composition, testimony of the state as to the laboratory's findings is inadmissible.

A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to
determine their composition and nature. The Court cannot reluctantly close its eyes to the likelihood or at least the possibility, that at
any of the links in the chain of custody over the same there could have been tampering, alteration or substitution of substances from
other cases by accident or otherwise in which similar evidence was seized or in which similar evidence was submitted for laboratory
testing. Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects which are readily
identifiable must be applied, a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to
render it improbable that the original item has either been exchanged with another or been contaminated or tampered with. 16

In connection thereto, Section 21 of R.A. No. 9165 provides for the manner by which law enforcement officers should handle seized
items in dangerous drugs cases:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. -The PDEA shall take charge
and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/ or laboratory equipment so confiscated, seized and/ or surrendered, for proper disposition in the
following manner:

1. The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically
inventory and photograph the same in the presence of the accused or the person/ s from whom such items were confiscated and/ or
seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected
public official who shall be required to sign the copies of the inventory and be given a copy thereof;

2. Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors
and essential chemicals, as well as instruments/paraphernalia and/ or laboratory equipment, the same shall be submitted to the PDEA
Forensic Laboratory for a qualitative and quantitative examination;

3. A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner,
shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided,  That when the volume of the dangerous
drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing
within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous
drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed
forensic laboratory examination on the same within the next twenty-four (24) hours[.]

Strict compliance with the chain of custody requirement, however, is not always the case. Hence, the IRR of R.A. No. 9165 provides:

SECTION 21.(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/ s from whom such items
were confiscated and/ or seized, or his/her representative or counsel, a representative from the media and the Department of Justice
(DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided,
that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police
station or at the nearest office of the apprehending officer /team, whichever is practicable, in case of warrantless seizures; Provided,
further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the
seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody
over said items. [Emphasis supplied]

In the case at bench, the prosecution failed to demonstrate substantial compliance by the apprehending officers with the safeguards
provided by R.A. No. 9165 as regards the rule on chain of custody. To begin with, the records are bereft of any showing that an
inventory of the seized items was made. Neither does it appear on record that the apprehending team photographed the contraband in
accordance with law.

Further, People v. Dahil  restated the links that the prosecution must establish in the chain of custody in a buy-bust situation to be as
17

follows: first,  the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending
officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the
investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth,  the turnover and submission of the
marked illegal drug seized by the forensic chemist to the court.
First Link: Marking of the Drugs
Recovered from the Accused by the
Apprehending Officer

Crucial in proving the chain of custody is the marking of the seized drugs or other related items immediately after they have been
seized from the accused. "Marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature
on the items seized. Marking after seizure is the starting point in the custodial link; hence, it is vital that the seized contraband be
immediately marked because the succeeding handlers of the specimens will use the markings as reference. The marking of the
evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized
from the accused until they are disposed of at the end of the criminal proceedings, thus, preventing switching, planting or contamination
of evidence. 18

Still, there are cases when the chain of custody rule is relaxed such as when the marking of the seized items is allowed to be
undertaken at the police station rather than at the place of arrest for as long as it is done in the presence of the accused in illegal drugs
cases. 19

In this case, Palconit claimed that he had placed his initials on the seized items. Based on his testimony, it is clear that the marking was
not immediately done at the place of seizure; instead, the markings were only placed at the PDEA office, for which the prosecution did
not offer any justifiable reason. Even if the Court glosses over this lapse, still, it could not be said that the integrity and evidentiary value
of the seized items were preserved. For one, neither in the direct examination nor in the cross-examination of Palconit was it mentioned
that the markings were made in the presence of accused-appellant or his representatives. He merely testified that he placed the
markings at the PDEA office, without any allusion to the identities of the persons who were present when he did the markings.

Moreover, in the Incident Report  as well as in the Affidavit of Arrest,  the specific markings made on the seized items were not
20 21

mentioned. The same documents merely specified that three (3) small heatsealed transparent plastic bags containing
suspected methamphetamine hydrochloride  of undetermined quantity were found in accused-appellant's possession. Considering that
the apprehending officers did not mark the sachets of illegal drugs at the place of seizure, then, it logically follows that the marking
should have been their foremost priority and should have been made prior to writing the incident report and executing the affidavit of
arrest. It, therefore, behooves the Court how Palconit could have said that he placed the markings at the PDEA office, but no mention of
the same whatsoever was made in both the incident report and in the affidavit of arrest. If the sachets of illegal drugs were already
marked, then there would have been no reason for its non-inclusion in the aforecited documents. Thus, the Court can only guess the
time when the markings were made and whether they were placed before the preparation of the incident report and the affidavit of
arrest.

To make matters worse, from the place of seizure to the PDEA office, the seized items were not marked. It could not, therefore, be
determined how the unmarked drugs were transported and who took custody of them while in transit.

Unfortunately, the direct examination of Palconit left much to be desired for it offered no explanation and justification for these lapses.
At most, what can be gleaned is the prosecution's lack of zealousness and interest in ensuring the conviction of accused-appellant
despite the time and resources at its disposal, viz:

Prosecutor Sampayo: When the marked money was recovered and two other sachets were recovered, what did you do?

Palconit: The suspect was brought to the PDEA office.

Prosecutor Sampayo: What did you do at the PDEA office?

Palconit: We turned over the confiscated evidence to the investigator and we informed our CO that the operation was positive.

Prosecutor Sampayo: What were the confiscated items which were turned over?

Palconit: Buy bust money, one sachet which I bought and two other sachets which were recovered from the suspect.

Prosecutor Sampayo: What was done with the confiscated sachets, the one that was bought and the two others which were recovered
from the target person?

Palconit: When we arrived at the office, we made a request for laboratory examination.

Prosecutor Sampayo: What did you do with the items?

Palconit: We placed markings on the confiscated items.

Prosecutor Sampayo: Do you remember what marking was placed?

Palconit: Yes, ma'm, REP-1, REP-2, REP-3.

Prosecutor Sampayo: What are these markings about?

Palconit: Those are my initials, Rache E. Palconit.

Prosecutor Sampayo: Where did you put the markings?

Palconit: At the sachets.

Prosecutor Sampayo: What sachets are you talking about?

Palconit: The sachet that I bought and the sachets that were recovered.

Prosecutor Sampayo: What marking was placed on the specimen found on his possession?

Palconit: REP-2 and REP-3.

Prosecutor Sampayo: After putting the markings, what did you do?

Palconit: We brought it to the crime laboratory.

Prosecutor Sampayo: Who personally brought it?

Palconit: Me. 22

In People v. De La Cruz,   where the marking of the seized items was made at the police station, and without any showing that the
23

same had been done in the presence of the accused or his representatives, the Court concluded that the apprehending team's
omission to observe the procedure outlined by R.A. No. 9165 in the custody and disposition of the seized drugs significantly impaired
the prosecution's case.

The prosecution's sweeping guarantees as to the identity and integrity of seized drugs and drug paraphernalia will not secure a
conviction.  While law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail
24

over the constitutional right of the accused to be presumed innocent and it cannot by itself constitute proof of guilt beyond reasonable
doubt. The presumption of regularity is merely just that - a mere presumption disputable by contrary proof and which when challenged
by evidence cannot be regarded as binding truth. 25

Second Link: Turnover of

the Seized Drugs by the
Apprehending Officer to
the Investigating Officer

The second link in the chain of custody is the transfer of the seized drugs by the apprehending officer to the investigating officer.
Usually, the police officer who seizes the suspected substance turns it over to a supervising officer, who will then send it by courier to
the police crime laboratory for testing. This is a necessary step in the chain of custody because it will be the investigating officer who
shall conduct the proper investigation and prepare the necessary documents for the developing criminal case. Certainly, the
investigating officer must have possession of the illegal drugs to properly prepare the required documents. 26

Here, the identity of the investigating officer was unknown.

Prosecutor Sampayo: What did you do at the PDEA office?

Palconit: We turned over the confiscated evidence to the investigator and we informed our CO that the operation was positive.

Prosecutor Sampayo: What were the confiscated items which were turned over?

Palconit: Buy bust money, one sachet which I bought and two other sachets which were recovered from the suspect. 27

It is unlikely that Palconit did not know the officer to whom he supposedly turned over the seized drugs. Surely, this investigating officer
worked with him in the same office. Indeed, the apprehending officer and investigating officer might be one and the same person. If that
was the case, however, then there would have been no need to say that Palconit turned over the seized items to the investigator. He
could have simply said that he was the one who conducted the investigation and prepared the necessary documents for the filing of a
criminal case against accused-appellant.

Similarly, in People v. Nandi,   where the apprehending officer was unable to identify the investigating officer to whom he turned over
28

the seized items, the Court held that such circumstance, when taken in light of the several other lapses in the chain of custody that
attend the case, raises doubts as to whether the integrity and evidentiary value of the seized illegal drugs had been preserved.

Third Link: Turnover by the

Investigating Officer of the Illegal
Drugs to the Forensic Chemist

From the investigating officer, the illegal drug is delivered to the forensic chemist. Once the seized drugs arrive at the forensic
laboratory, it will be the laboratory technician who will test and verify the nature of the substance.  In this case, it was uncertain who
29

received the seized items when it was brought to the forensic laboratory, to wit:

Prosecutor Sampayo: When the marked money was recovered and two other sachets were recovered, what did you do?

Palconit: The suspect was brought to the PDEA office.

Prosecutor Sampayo: What did you do at the PDEA office?

Palconit: We turned over the confiscated evidence to the investigator and we informed our CO that the operation was positive.

Prosecutor Sampayo: What were the confiscated items which were turned over?
Palconit: Buy bust money, one sachet which I bought and two other sachets which were recovered from the suspect.

Prosecutor Sampayo: What was done with the confiscated sachets, the one that was bought and the two others which were recovered
from the target person?

Palconit: When we arrived at the office, we made a request for laboratory examination.

Prosecutor Sampayo: What did you do with the items?

Palconit: We placed markings on the confiscated items. 30

xxx

Prosecutor Sampayo: After putting the markings, what did you do?

Palconit: We brought it to the crime laboratory.

Prosecutor Sampayo: Who personally brought it?

Palconit: Me.

Prosecutor Sampayo: Why did you bring it to the crime laboratory.

Palconit: or a oratory exammation. 31

There are several unexplained and doubtful points in this step.

First,  Palconit testified that he placed the markings on the sachets upon arrival at the office. Then, he turned over the seized items to
the investigator. In the latter part of his testimony, however, he said that after placing the markings, he brought the illegal drugs to the
crime laboratory. The circumstances surrounding the custody of the illegal drugs, from the time they were brought to the PDEA office up
to their turnover to the forensic laboratory, are all muddled. Moreover, it is unclear whether another officer intervened in the handling of
the illegal drugs or it was only Palconit himself who placed the markings and delivered the illegal drugs to the forensic chemist.

Further, a perusal of the records shows that the request for laboratory examination  was prepared and signed by a certain Police Chief
32

Inspector Raul Loy Bargamento (Bargamento), who had necessarily taken custody of the seized items at some point in order to
execute the request for laboratory examination. Yet, Palconit did not even bother to mention Bargamento in his testimony. The
prosecution would have the Court guess (1) whether Bargamento was the same person to whom Palconit turned over the seized items
and (2) whether Bargamento was the one who handed Palconit the seized items for delivery to the forensic laboratory. Hence, the
identities of the officers who had custody of the illegal drugs, even for momentary periods, are open to question.

Finally,  Fabros testified that their office received the request for laboratory examination on May 25, 2003 at three (3) o'clock in the
afternoon. The request for laboratory examination  indicated that the same was received by Fabros. It is worthy to note, however, that
33

she did not affix her signature thereon. Moreover, in their testimonies, neither Palconit nor Fabros identified each other as the person
who delivered and received the seized drugs respectively. Hence, for failure of Fabros to mention before the court that she indeed
received the seized drugs from Palconit, her name, appearing on the request for laboratory examination, remained to be hearsay.

In People v. Beran,   the investigator of the case claimed that he personally took the drug to the laboratory for testing, but there was no
34

showing who was the laboratory technician who received the drug from him. The Court noted that there was serious doubt that the
integrity and evidentiary value of the seized item had not been fatally compromised.

Fourth Link: Turnover of the Marked

Illegal Drug Seized by the Forensic
Chemist to the Court

The last link involves the submission of the seized drugs by the forensic chemist to the court when presented as evidence in the
criminal case. 35

In this case, the records are bereft of any evidence as to how the illegal drugs were brought to court. Fabros merely testified that she
made a report confirming that the substance contained in the sachets brought to her was positive for shabu.

The saving clause in Section 21, IRR of R.A. No. 9165 fails to remedy the lapses and save the prosecution's case. In People v.
Garcia,  the Court stated that "the saving clause applies only where the prosecution recognized the procedural lapses, and thereafter
36

cited justifiable grounds." Failure to follow the procedure mandated under R.A. No. 9165 and its IRR must be adequately explained. 37

In both illegal sale and illegal possession of prohibited drugs, conviction cannot be sustained if there is a persistent doubt on the identity
of the drug.  The identity of the prohibited drug must be established with moral certainty. Apart from showing that the elements of
1âwphi1

possession or sale are present, the fact that the substance illegally possessed and sold in the first place is the same substance offered
in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict. 38

In fine, the Court holds that the totality of the evidence presented does not support a finding of guilt with the certainty that criminal cases
require. The procedural lapses committed by the apprehending team show glaring gaps in the chain of custody, creating a reasonable
doubt on whether the shabu seized from accused-appellant was the same shabu  that were brought to the crime laboratory for chemical
analysis, and eventually offered in court as evidence. Hence, the corpus delicti  has not been adequately proven.
It could be that the accused was really involved in the sale of shabu, but considering the doubts engendered by the paucity of the
prosecution's evidence, the Court has no recourse but to give him the benefit thereof. Law enforcers should not only be mindful of the
procedures required in the seizure, handling and safekeeping of confiscated drugs, but the prosecution should also prove every
material detail in court. Observance of these is necessary to avoid wasting the efforts and the resources in the apprehension and
prosecution of violators of our drug laws.
39

WHEREFORE, the appeal is GRANTED. The October 16, 2015 Decision of the Court of Appeals in CA-G.R. CR. H.C. No. 0684 7
is REVERSED and SET ASIDE. Accused-appellant Anastacio Hementiza y  Dela Cruz is hereby ACQUITTED of the crimes charged
against him and ordered immediately RELEASED from custody, unless he is confined for some other lawful cause.

The Director of the Bureau of Corrections is ORDERED to immediately implement this decision and to inform this Court of the date of
the actual release from confinement of the accused within five (5) days from receipt of a copy of this decision.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

FIRST DIVISION

January 19, 2018

G.R. No. 208835

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee 

vs.
NOEL BEJIM y ROMERO, Accused-Appellant

DECISION
DEL CASTILLO, J.:

This is an appeal from the September 25, 2012 Decision  of the Court of Appeals (CA) in CA-G.R. CR-HC No. 05010 affirming with
1

modification the December 9, 2010 Consolidated Judgment  of the Regional Trial Court (RTC), Branch 9, La Trinidad, Benguet, finding
2

appellant Noel Bejimy Romero guilty of seven counts of rape.

Factual Antecedents

On February 19, 2007, appellant was charged before the RTC of La Trinidad, Benguet, with seven counts of statutory rape under seven
separate Informations, viz.:

Criminal Case No. 07-CR-6765

That sometime in the first week of October. 2001, x x x Province of Benguet, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge of "AM,"  a minor being
3

six (6) years and eleven (11) months of age at the time of the commission of the crime, to her damage and prejudice.

CONTRARY TO LAW. 4

Criminal Case No. 07-CR-6766

That sometime in the second week of October, 2001, x x x Province of Benguet, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously haw carnal knowledge of "AAA," a
minor being six (6) years and eleven (11) months of age at the time of the commission of the crime, to her damage and prejudice.

CONTRARY TO LAW. 5

Criminal Case No. 07-CR-6767

That sometime in the month of September, 2001, x x x Province of Benguet, Philippines, and "Within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge of "BBB," a minor being
seven (7) years and eleven (11) months of age at the time of the commission of the crin1e, to her damage and prejudice.

CONTRARY TO LAW. 6

Criminal Case No. 07-CR-6768

That sometime in the month of September, 2001, x x x Province of Benguet, Philippines, and within the jurisdiction of this Honorable
Court, the Above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge of ''CCC," a minor
being seven (7) years and ten (10) months of age at the time of the commission of the crime, to her damage and prejudice.

CONTRARY TO LAW. 7

Criminal Case No. 07-CR-6769

That sometime in the second week of October, 2001, x x x Province of Benguet, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge of "CCC," a
minor being seven (7) years and eleven (11) months of age at the time of the commission of the crime, to her damage and prejudice.

CONTRARY TO LAW. 8

Criminal Case No. 07-CR-6770

That sometime in the last week of October, 2001, x x x Province of Benguet, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge of "CCC," a minor
being seven (7) years and eleven (11) months of age at the time of the commission of the crime, to her damage and prejudice.

CONTRARY TO LAW. 9

Criminal Case No. 07-CR-6771

That sometime in the first week of October, 2001, x x x Province of Benguet, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge of "CCC," a minor
being seven (7) years and eleven (11) months of age at the time of the commission of the crime, to her damage and prejudice.

CONTRARY TO LAW. 10

On May 8, 2007, appellant was arraigned in all the seven Informations and pleaded not guilty. The cases were consolidated and tried
jointly.

Criminal Case No. 07-CR-6765

"AAA'' first met appellant who was the helper of her cousin ''CCC's" father at "CCC's" house when she went there to play. In the first
week of October 2001 while at "CCC's" house, appellant made "AAA'' lie on a sofa. He undressed her, applied cooking oil on her
vagina and on his penis, and then rubbed his penis against her vagina for some time. He then pulled "CCC" to the sofa and again
placed cooking oil on his penis and on "CCC's" vagina. "AAA" saw this because she was just a meter away from them. Appellant
warned "AAA" and ''CCC'' not to tell anyone of what transpired otherwise he would kill them and their families.

Criminal Case No. 07-CR-6766

Sometime in the second or third week of October 2001, while "AAA" and "CCC' were playing at the latter's house, appellant again
pulled them to a sofa. When appellant went to the kitchen, "AAA" and "CCC" tried to run away but appellant caught them at the living
room. He forced ''AAA" to lie on the sofa, pulled down her pants and panties to her ankle, and applied cooking oil on his penis and her
vagina. Appellant rubbed his penis on "AAA's vagina. She felt pain. Thereafter, appellant likewise pulled "CCC" to the sofa, brought
down the latter's pants, and rubbed his penis against her vagina. After threatening them, appellant wore his pants and went out of the
house.

Criminal Case No. 07-CR-6767

"BBB" is also a cousin of "CCC" and "AAA". In the first week of September 2001, while she and "CCC" were inside the latter's house.
appellant suddenly pulled them to the sofa in the living room. Appellant laid "CCC" on the sofa, applied cooking oil on her vagina and
his penis; and tried to insert his penis into "CCC's" vagina. Thereafter, appellant turned to "BBB." He made her Lie on the sofa, lifted her
skirt, pulled down her panties, his pants and brief, and tried to insert his penis into her vagina, Unsuccessful, he just brushed or rubbed
his penis against her vagina. "BBB" felt pain in her vagina. Appellant immediately stood up; fixed his clothes and ran away upon seeing
the arrival of "BBB's" cousins. "DOD" and "EEE." "BB" told her cousins that they were sexually molested by appellant but wan1ed them
not to tell anybody because if they do appellant would kill them.

Criminal Case No. 07-CR-6768

'"CCC" knew appellant because he was the helper of her father and lived with them in their house. In the first week of September 2001,
while she and her cousin "BBB" were playing inside their house, appellant closed all the windows and doors, made her lie on the sofa,
lowered her pant5 and underwear down to her ankle, and put cooking oil on his penis and on her vagina. "BBB" saw appellant's penis
penetrating ''CCC's" vagina. When appellant saw "CCC's" two sisters "DDD" and "EEE" arrive, he went out of the house.

Criminal Case No. 07-CR-6769

In the second week of October 2001, appellant laid ''CCC" on the kitchen table, removed her pants, put cooking oil on his penis and her
vagina and tried to penetrate it but was unsuccessful.

Criminal Case No. 07-CR-6770

In the last week of October 2001, while "CCC" was sleeping in her sister's bedroom, appellant came and removed her clothes, mounted
her and tried to insert his penis but he failed, albeit she felt his big penis. "CCC" did not tell her father of what happened because of
appellant's threat.

Criminal Case No. 07-CR-6771

Sometime in the first week of October 2001 and while inside "CCC's" house, appellant laid "CCC" on the sofa, put cooking oil on her
vagina and his penis. He tried to insert his penis into her vagina but failed. Thereafter, appellant went outside. "CCC" did not tell anyone
about the incident because of appellant's threat to kill her and her family.

"AAA,'' ''BBB" and "CCC" were physically examined by Dra. Bernadette Valdez (Dra. Valdez). The result of her examination which was
reduced into writing  shows no evident injury at the time of her examination though her medical evaluation does not exclude possible
11

sexual abuse.

Appellant denied the accusations against him claiming that he was not in the house of "CCC" when the alleged incidents happened in
200l.

Ruling of the Regional Trial Court

After trial, the RTC rendered on December 9, 2010 its Consolidated Judgment finding appellant guilty beyond reasonable doubt of
seven counts of rape and sentencing him to suffer the penalty of reclusion perpetua for each count. He was also ordered to pay the
amount of ₱50,000.00 as civil indemnity and another ₱50,000.00 as moral damages for each crime.

Ruling of the Court of Appeals

The CA, in its Decision dated September 25, 2012, affirmed with modifications the RTC Consolidated Judgment in this wise:

ACCORDINGLY, the Consolidated Judgment dated December 9, 2010 is AFFIRMED with MODIFICATION, as follows:

1. pronouncing appellant Noel Bejim y Romero guilty of qualified rape in Criminal Case Nos. 07-CR-67-65 and 07-CR- 67-66
and liable for Php75,000.00 as civil indemnity, Php75,000.00 as moral damages and Php30,000.00 as exemplary damages for
each count;

2. pronouncing appellant Noel Bejim y Romero guilty of statutory rape in Criminal Case ·No. 07-CR-67-67 and liable for
Php75,000.00 as civil indemnity. Php75,000.00 as moral damages and Php30,000.00 as exemplary damages; and,
 3. pronouncing appellant Noel Bejim y Romero guilty of statutory rape in Criminal Case Nos. 07-[CR]-67-68, 07-[CR]-67-69,
07- [CR]-67-70, and 07-[CR]-67-7 l and liable for Php75,000.00 as civil indemnity, Php75,000.00 as moral [damages] and
Php30,000.00 as exemplary damages for each count.

In Criminal Case Nos. 07-CR-67-65 and 07-CR-67-66 appellant shall not be qualified for parole.

SO ORDERED. 12

Appellant interposed before this Court the present recourse adopting the same argument he raised in his brief before the CA, viz.:

The court a quo gravely erred in finding the accused-appellant guilty of the crime of rape despite the prosecution's failure to prove his
guilt beyond reasonable doubt. 13

In support of his argument, appellant impugns the victims' credibilities by capitalizing on the alleged inconsistencies in their open court
testimonies; their failure to shout for help during the alleged incidents; the belated filing of their complaints; and, the medical finding of
no evident injury during their examination.

Our Ruling

The appeal lacks merit.

The inconsistency pointed out by appellant as to whether "AAA" was alone or with "BBB" during the alleged incident on the first week of
October 200 l refers merely to inconsequential matter that will not affect the determination of whether appellant is innocent of the crime
charged or not. "[D]iscrepancies referring only to minor details and not to the cen1ral fact of the crime do not affect the veracity or
detract from the credibility of a witness' declaration x x x." Respecting the alleged inconsistency on whether appellant's penis touched
14

"AAA's" vagina or not, the same has been clarified by "AAA" herself  "AAA" stated that appellant's penis indeed brushed her vagina. As
15

held in Dizon v. People,  "(i]n rape cases, the testimony of [the] complainant must be considered and calibrated in its entirety, and not in
16

its truncated portion or isolated passages thereof The true meaning of answers to questions propounded to a witness is to be
ascertained with due consideration of all the questions and answers given thereto. The whole impression or effect of what has been
said or done must be considered, and not individual words or phrases alone. Facts imperfectly stated in answer to a question may be
supplied or clarified by one's answer to other questions."

The failure of the victims to shout for help or escape during the incidents does not undermine their credibility. It is not also fatal to the
prosecution's case. "[N]o standard form of behavior can be anticipated of a rape victim following her defilement, particularly a child who
could not be expected to fully comprehend the ways of an adult. People react differently to emotional stress, and rape victims are no
different from them." 17

Neither the delay in reporting the incidents to the proper authorities tainted the victims' credibility. For sure, there was no prompt
revelation of what befell the victims. But "long silence and delay in reporting the crime of rape have not always been construed as
indications of a false accusation."  "A rape charge becomes doubtful only when the delay in revealing its commission is unreasonable
18

and unexplained." In the present case, appellant threatened the victims that he would kill them and their families if they would tell
19

anyone of what he did to them. To our mind, this is a reasonable explanation for the delay.

Regarding the findings of Dra. Valdez that her physical examination on the victims shows no evident injury, this Court had already ruled
that ''a medical examination of the victim is not indispensable in a prosecution for rape inasmuch as the victim's testimony alone, if
credible, is sufficient to convict the [accused] of the crime." 20

Appellant denies being Cit the house of "CCC" duri.ng the incidents. However, he failed to provide an account of his whereabouts such
that it was physically impossible for him to have committed the crimes. Appellant's unsubstantiated denial must fail in light of the
categorical testimonies of the victims that it was he who molested them.

Notably, appellant's belabored attempt to reverse his conviction is essentially anchored on credibility.  The general rule is that "this
1âwphi1

Court will not disturb the findings of the trial court as to the credibility of witnesses, considering that it is in a better position to observe
their candor and behavior on the witness stand."  However, this principle ·does not .preclude a reevaluation of the evidence to
21

determine whether matei1al facts or circumstances have been overlooked or misinterpreted by the trial court.  Consistent with the
22

p1incipal that an appeal in a criminal action opens the whole case for review, we shall now determine whether the' evidence of the
prosecution is sufficient to sustain the conviction of the appellant for qualified rape and statutory rape.

Rape is committed by having carnal knowledge of a woman with the use of force, threat or intimidation or when she is under 12 years of
age or is demented. Where the victim is below 12 years old, the only subject of inquiry is whether ''carnal knowledge" took place.
Carnal knowledge is "the act of a man having sexual intercourse or sexual bodily connections with a woman".  There must be proof that
23

his penis touched the labias of the victims  or slid into their female organs and not merely stroked the external surface thereof, to
produce a conviction of rape by sexual intercourse. 24

''AAA" recounted the details on how the alleged rape was committed as follows:

The alleged rape committed on the first week of October 2001 (Criminal Case No. 07-CR-6765)-

xxxx

Q: And what did he do after he made you lie down on the sofa?

A: He went to get cooking oil and poured it on his penis and he undressed me and he also poured cooking oil on my vagina.

Q; After he placed oil [on] his penis and placed oil (on] your vagina, what did he do next?
A: He rubbed his penis on my vagina. 25

The rape on the second week of October 2001 (Criminal Case No. 07-CR- 6766)-

xxxx

Q: And after pulling down your pants and panty, what did he do next?

A: Sir, he again placed cooking oil on his penis and [on] my vagina and he again rubbed his penis into my vagina.

xxxx

Q: And did you feel anything when he rubbed his penis [on] your vagina?

A: Yes, sir, it was quite painful. 26

Regarding the rape allegedly committed during the first week of September 2001 (Criminal Case No. 07-CR-6767) "BBB" narrated her
horrifying experience as follows:

Q: So after Noel Bejim sat beside you, did Nod Bejim do anything Else?

A: Yes, sir.

Q: What did he do?

A: He pulled me and let me lie down on the sofa.

Q: Was he able to make you lie down on the sofa?

A: Yes, sir.

Q: And when he was able to lay you down on the sofa, what did he do next, if any?

A: He lifted my skirt and . . .

Q: After he lifted your skirt, what did he do next, if any?

A: He brought down my panty and he pulled down his clothes.

Q: What clothes did he bring down?

A: Sir, his pants sir and his brief.

Q: And after he brought down his pants and his brief, what did Noel Bejim do next?

A: He tried to insert his penis [into] my vagina.

Q: Did you feel his penis [inside] your vagina?

A: Yes, sir.

Q: And was he able to insert his penis into your vagina?

A: Sir, he just brushed it.

xxxx

Q: And what did you feel, if any, when he was brushing his penis [on] your vagina?

A: It was painful, sir.

xxxx

Q: So after rubbing his penis into your vagina, what did he do next?

A: When he saw my cousins, he immediately got up, stood up.

xxxx

Q: And when he stood up, what did he do next?

A: He fixed his pants and his brief and he ran away. 27

The foregoing revelations of "AAA'' and "BBB" show that the evidence adduced by the prosecution did not conclusively establish the
element of carnal knowledge. In the aforementioned cases, there is no categorical proof of entrance or introduction of appellant's male
organ into the labia of the pudendum of "AAA." Neither is there evidence to show that appellant made an attempt to penetrate "AAA's"
vagina. The prosecution’s evidence lacks definite details regarding penile penetration. On the contrary, "AAA'' and "'BBB" stated that
appellant merely "brushed or rubbed" his penis on their respective private organs. While "BBB" testified that appellant tried to insert his
penis into her vagina, she nevertheless failed to state for the record that there was the slightest penetration into it. What is clear on
record is that appellant merely brushed it.

The Court held in People v. Butiong  that ''the labia majora must be entered for rape to be consummated, and not merely for the penis
28

to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of
the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female
organ, i.e., touching of either the labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness." While "the mere touching of the external genitalia by the penis capable of consummating
the sexual act is sufficient to constitute carnal knowledge,"  "the act of touching should be m1derstood here as inherently part of the
29

entry of the penis into the labias of the female organ and not mere touching alone of the mons pubis or the pudemdum."  Indeed, the
30

grazing of the victims' private organ caused pain, but it cannot be presumed that carnal knowledge indeed took place by reason thereof
As the Court held in People v. Brioso,  "the Court is loath to convict an accused for rape solely on the basis of the pain experienced by
31

the victim as a result of efforts to inse1t the penis into the vagina." Significantly, from their own declaration following the public
prosecutor's questioning, they suffered pains not because of appellant's attempt to insert his penis but because of the grazing of their
vagina.

Given the foregoing and since there is neither clear showing or direct proof of penile penetration or that appellant's penis made contact
with the labias of the victims, which is an essential element of the crime of rape, we cannot sustain appellant's conviction for the crime
of rape in Criminal Case Nos. 07-CR-6765; 07-CR-6766; 07-CR-6768; 07-CR-6769 and 07-CR-6770.

However, appellant can be convicted of Acts of Lasciviousness under Article 336 of the Revised Penal Code (RPC) in relation to
Section 5 of Republic Act (RA) No. 7610,  which was the offense proved though he was charged with rape through sexual intercourse
32

in relation to RA 7610, applying the variance doctrine under Section 4 in relation to Section 5 of Rule 120 of the Revised Rules of
Criminal Procedure.  The crime of Acts of Lasciviousness under Article 336 of the RPC in relation to Section 5 of RA 7610, which was
33

the offense proved is included in rape, the offense charged. 34

The essential elements of sexual abuse under Section S(b) of RA 7 610 are as follows:

(l) The accused commits the act of sexual intercourse or lascivious conduct;

(2) The said act is performed with a child exploited in prostitution or subjected to other sexual abuse; and,

(3) The child, whether male or female, is below 18 years of age 35

On the other hand, the elements of Acts of Lasciviousness under Article 336 of the RPC are as follows:

(1) That the offender commits any act of lasciviousness or lewdness;

(2) That it is done under any of the following circumstances:

a) Through force, threat or intimidation;

b) Where the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority;

d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances
mentioned above be present; and (3) That the offended party is another person of either sex. 36

All the elements of acts of lasciviousness under Article 336 of the RPC and sexual abuse under Section 5(b) of RA 7 610 were
sufficiently established in the afore-numbered cases. Specifically, appellant committed lasciviousness when he poured cooking oil on
the victims' private organ and rubbed them with his penis. The victims were under 12 years of age as established by their respective
birth certificate and therefore way below 18 years of age. They were subjected to "other sexual abuse" as required wider Section 5(b) of
RA 7610. "A child is deemed subjected to 'other sexual abuse' when he or she indulges in lascivious conduct under the coercion or
influence of any adult."  There is coercion or influence when there is some form of compulsion equivalent to intimidation which subdues
37

the free exercise of the offended party's free will.  In the present cases, the victims were sexually abused as they were coerced,
38

influenced, threatened and intimidated by appellant who was the helper of "CCC's" father.

Based on the evidence established, appellant can thus be held criminally liable of the crime of Acts of Lasciviousness under Article 336
of the RPC in relation to Section 5 of RA7610. 39

On the alleged rape committed during the second week of October 2001 (Criminal Case No. 07-CR-6769) ''CCC declared:

Q· And after your pants were removed, what did Noel Bejim do next?

A: He again raped me, sir.

Q: What did he do?

A: He again, tried to put his penis into my vagina.'

Q: Did you feel his penis into your vagina?

A: Yes, your Honor.

Q: And what happened when he was trying to insert his penis into your vagina?

A: Sir it failed.

Q: What do you mean it failed?

A: It did not enter, it cannot enter. He was hard up inserting his penis.

Q: Why?

A: Because his penis is big. 40

As to the rape allegedly committed in the last week of October 2001 (Criminal Case No. 07-CR-6770) "CCC's'' pertinent testimony is as
follows:

Q: And after he removed your clothes, what did he do next?

A: He again tried to insert it [into] my vagina, sir.

xxxx

Q: Did you feel his penis in your vagina?

A: Yes, your Honor.

Q: What did you feel?

A: He was trying to insert his penis into my vagina, your Honor and I felt pain.

Q: What caused that pain?

A: His penis is big. 41

We find no compelling reason why we should not apply our earlier ratiocination in Criminal Case Nos. 07-CR-6765, 07-CR-6766 and
07-CR-6767 to the incidents committed on "CCC" sometime in October 2001. In Criminal Case No. 07-CR-6769, "CCC'' categorically
testified that appellant failed to inse1t his penis into her vagina because it is big. Similarly, in Criminal Case No. 07-CR- 6770, "CCC"
revealed that she felt pain when appellant was trying to insert his penis into her vagina because it is big. Significantly, however, we
could not discern from her testimony that there was penile penetration even only in the slightest degree. To conclude that there was
penile penetration simply because they felt pain when appellant tried to insert his penis into her vagina is engaging in the realm of
speculation. However, the medical examination on "CCC," though not indispensable in a prosecution for rape, shows no evident injury.
At this juncture, it must be stressed that in a criminal prosecution, each and every element of the crime, must be proved beyond
reasonable doubt. Judgment must never rest on speculation or suspicion, no matter how strong it is. "Courts cannot function to supply
missing links in the prosecution evidence which otherwise insufficiently proves carnal knowledge.'' 42

Relative to the rape which allegedly occurred in the first week of September 2001 (Criminal Case No. 07-CR-6768) "CCC" related her
ordeal as follows:

Q: In the year 2001 while you were in Grade Two, do you recall if Noel Bejim did anything to you?

A:Yes, your Honor.

Q: What did he do to you?

A: He raped me, sir.

xxxx

Q: So you said you were raped by Noel Bejim, how did he rape you, what did he do to you that you claim that he raped you?

xxxx

A: Sir, he [got] cooking oil, your Honor.

Q: After he got cooking oil, what did he do with the cooking oil, if you noticed?

A: He placed the cooking oil [on] my vagina and [on] his penis.
 xxxx

Q: So after he removed x x x your pants and panty [and] while you were lying down on the sofa, what did Noel Bejim do next?

A: He tried to put his penis [into] my vagina.

Q: How did he try?

A: He held his penis.

Q: And what did he do with his penis?

A: He inserted it [into] my vagina.

Q: Did his penis touch your vagina?

A: No, your Honor.

Q: It did not touch your vagina?

A: His penis touched my vagina.

Q: Now, you said he was trying to insert his penis into your vagina, what motion did he do, if any?

A: He was hard up.

Q: Did you feel his penis?

A: Yes, your Honor.

Q: You felt it in your vagina?

A: Yes, your Honor. 43

"CCC' continued further in narrating the incident of rape allegedly committed in the first week of October 2001 (Criminal Case No. 07-
CR-6771) as follows:

Q: And after putting cooking oil [on] your vagina and [on] his penis, what did he do next?

A: He tried again to put his penis [into] my vagina but he failed again.

Q: Did you feel his penis into your vagina?

A: Yes, sir.

Q: Now, why did you say he failed?

A: It was not inserted enough.

Q: Do you know of any reason why it was not inserted enough into your vagina?

A: Because his penis is big. 44

Based on the foregoing narration, the Court is convinced that in Criminal Case Nos. 07-CR-6768 and 07-CR-6771, there was a slight
penetration on "CCC's" genitalia. "CCC'' positively testified that appellant's penis indeed touched her vagina. That appellant's penis was
not inserted enough only indicates that he was able to penetrate her even partially. Anyway, complete penetration is not required to
consummate the crime of rape. "Full penile penetration is not a consummating ingredient in the crime of rape."  Thus, from the
45

testimonial account of "CCC," the Court could reasonably conclude that there was indeed carnal knowledge by appellant of the victim
"CCC." We therefore sustain the CA in finding appellant guilty of statutory rape in Criminal Case Nos. 07-CR-6768 and 07-CR-6771,
the only elements of which are "(1) that the offender had carnal knowledge of a woman; and (2) that such woman is under 12 years of
age or is demented." 46

With the guilt beyond reasonable doubt of appellant of the crime of Acts of Lasciviousness under Article 336 of the RPC in relation to
Section 5 of RA 7610 in Criminal Case Nos. 07-CR-6765, 07-CR-6766, 07-CR-6767, 07-CR-6769 and 07-CR-6770 and statutory rape
in Criminal Case Nos. 07-CR-6768 and 07-CR- 6771, having been proven, we shall now determine the appropriate penalties imposable
for each offense.

Under Article 336 of the RPC, in relation to Section 5(b), Article III of RA 7610,  the penalty for acts of lasciviousness when the victim is
47

under 12 years of age is reclusion temporal in its medium period which has a range of fourteen (14) years, eight (8) months and one (1)
day to seventeen (17) years and four (4) months. Applying the Jndete1minate Sentence Law, the minimum of the indeterminate penalty
shall be taken from the full range of the penalty next lower in degree i.e., reclusion temporal in its minimum period or from twelve (12)
years and one (1) day to fourteen (14) years and eight (8) months. The maximum of the indeterminate penalty shall be taken from the
proper penalty that could be imposed under the RPC for acts of lasciviousness which, there being no aggravating or mitigating
circumstance in these cases, is the medium period of reclusion temporal medium which ranges from fifteen (15) years, six (6) months
and twenty (20) days to sixteen (16) years, five (5) months and nine (9) days.

In Criminal Case Nos. 07-CR-6768 and 07-CR-6771, the sentence of reclusion perpetua imposed upon appellant by the CA for the
crime of statutory rape is in accordance with Article 266-B of the RPC, as amended, in relation to Section 5(b), Article III of RA 7610.
Likewise proper are the awards of civil indemnity in the amount of Php75,000.00 and moral damages in the amount of Php75,000.00
for each count of rape. The award of exemplary damages in the amount of Php30,000.00 is increased to Php75,000.00 for each case.

WHEREFORE, the appealed September 25, 2012 Decision of the Court of Appeals is AFFIRMED with modifications. Appellant Noel
Bejim y Romero is found GUILTY of:

1. Acts of Lasciviousness under Article 336 of the Revised Penal Code in relation to Section 5 of Republic Act No. 7610 in
Criminal Case Nos. 07-CR- 6765, 07-CR-6766, 07-CR-6767, 07-CR-6769 and 07-CR-6770 and sentenced in each case to an
indeterminate prison term of thirteen (13) years, nine (9) months and ten (10) days of reclusion temporal minimum, as
minimum, to sixteen (16) years, five (5) months and nine (9) days of reclusion temporal medium, as maximum. In addition,
appellant is ordered to pay the victims the amounts of Php20,000.00 as civil indemnity, Php15,000.00 as moral damages,
Php15,000.00 as exemplary damages, and Php15,000.00 as fine, for each count of acts of lasciviousness.

2. Statutory Rape in Criminal Case Nos. 07-CR-6768 and 07-CR-6771 and sentenced to suffer the penalty of reclusion
perpetua for each count and ordered to pay the offended party the amounts of Php75,000.00 as civil indemnity, Php75,000.00
as moral damages and Php75,000.00 as exemplary damages for each count of rape.

Appellant is ORDERED to pay the offended parties interest on all damages awarded at the legal rate of 6% per annum from the date of
finality of this judgment until fully paid.

SO ORDERED.