3. PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.

JHONNETTEL MAYORGA y LUMAGUE alias Puroy, accused-appellant. G.R. No.

FACTS:

That at about five o'clock in the afternoon of 24 June 1995, in Barangay Zone I, Sitio Paraiso,
Pinamalayan, Oriental Mindoro, and five-year old Leney Linayao was playing by the seashore.
Suddenly, she was approached by the accused Jhonnettel Mayorga y Lumague alias Puroy who
asked her to buy for him a bottle of gin commonly known as "bagets. He then brought the child
to a marshy area nearby where he boxed her on the face and chest and wrung her neck until she
fainted. By the time Leney recovered consciousness, Puroy had already raped her and then
disappeared. Leney, bleeding and muddied, stood up and walked away to the direction of
Matuod-tuod where her family lived.

On her way home she met Macaria M. Gonzales who immediately brought her to a certain
Kapitan Lunario. Lunario, in turn, asked the Tanods to take the child to the barangay hall where
she narrated her experience to the barangay tanods gathered in the hall. The tanods brought
Leney to the clinic of Dr. Roberto Ngo who examined and attended to her.

At about this time, Leney’s grandmother, Alfonsa Magculang, together with some men started
looking for her. While searching them met Puroy's cousin, Edwin Lumague, who told them that
Leney was raped by Puroy and was "dead" when abandoned. According to Edwin, while he was
preparing to join the search, Puroy dissuaded him from going and confided to him that "iyong
bata si Leney ay napagtripan niya at nilitik niya." With Edwin leading the way, they immediately
repaired to where Leney was supposedly taken by Puroy. But she was not there. The search party
proceeded to the military detachment to report the matter. There they were told by Richard
Magboo that Leney had been taken by the barangay tanods to Dr. Ngo’s clinic.

On 27 June 1995 Dr. Cristina Gonzales physically examined Leney at the provincial hospital. Dr.
Gonzales found that Leney sustained "hematoma, right eye; contusion hematoma, right temporal
area; multiple abrasions: right shoulder, left anterior chest, left thigh and leg, upper back.
External genitalia: complete hymenal lacerations at 3, 5, 7 & 10 o'clock positions with
erythematous borders, with a 1 cm. perineal laceration with purulent discharge. Internal
examination: vagina admits 1 finger with ease. Laboratory examination: cervico-vaginal smear
for the presence of spermatozoa revealed NEGATIVE result.

After the prosecution had rested, Puroy with leave of court filed a demurrer to evidence, which
was denied by the trial court. Thereafter, the defense presented the accused as its lone witness
who claimed that the imputation against him was a lie. He claimed that at the time of the
supposed rape he was "patay lasing." He narrated that at about three o’ clock in the afternoon of
the day in question he was with Manuel Erebe and Rico Erebe at the seashore drinking gin in
celebration of the feastday of Saint John the Baptist.

After consuming a few bottles of gin he blacked out. When he awoke at seven o’clock in the
evening, he found that he was alone and so he decided to go home. He was met by Edwin who
told him that policemen were looking for him and that he was a suspect in the rape of Leney, his
neighbor. But he denied these accusations and went home to sleep. After an hour, he was
awakened by the police, arrested and brought to the PC barracks.

ISSUE:

Whether or not the testimony of the victim should be given credence despite having been
coached by her grandmother?

RULING:

The argument that Leney has lost her credibility since she admitted that she had been coached by
her grandmother has no merit. The victim, an innocent and guileless five-year old when the
crime was committed against her, cannot be expected to recall every single detail and aspect of
the brutal experience that she went through in the hands of the accused. Besides, at the time of
her testimony she had stopped schooling and did not have the gift of articulation. It is but fair
that she be guided through by her grandmother in recounting her harrowing experience which
happened two (2) years before she testified.

We realize how extremely painful it was for Leney to reveal that she had been raped. Her attempt
to demonstrate before the court the accused's success in having carnal knowledge of her spoke of
her utter innocence and naiveté. Her painful cries were eloquent testimonies of an anguish too
grievous for a young girl to bear. Indeed, it is simply hard to conceive that a girl of her character
would be able to weave such a sordid tale.

At this juncture, we take exception to the pronouncement made by the court below that "the
testimony of Edwin Lumague that accused Jhonnettel Mayorga conveyed to him that 'May
napagtripan akong bata. (Nalitik daw po niya ang bata)' could not be given credence and
therefore inadmissible, both as violative of the constitutional rights of the accused and as hearsay
evidence.

In the face of Edwin's testimony that the accused had made the admission, it becomes imperative
for the latter to disprove it. His explanation that Edwin was coerced to testify against him is at
best a futile attempt to prop a tottering defense. The allegation can be no better than pure
speculation as nothing was offered to support it. On the other hand, it is indeed incredible that
Edwin could be frightened by the threat of a five-year old child.

All told, the guilt of the accused for the rape of Leney Linayao has been conclusively
established. But, the penalty of death was erroneously imposed. Under Art. 335 of the Revised
Penal Code, as amended by RA 7659, death shall be imposed "when the victim is a child below
seven (7) years old. In the instant case, the Information charging the accused with rape alleged
the circumstance that the victim, Leney Linayao, was five (5) years of age. However, it is
significant to note that the prosecution failed to present her birth certificate. Although the
victim’s age was not contested by the defense, proof of age is critical considering that the
victim’s age at the time of the rape was just two (2) years less than seven (7) years.
 Given the similarities in physical features and attributes between a five-year old child and a
seven-year old, an independent proof of age is necessary to convince this Court that the victim
was indeed below seven (7) years of age when she was raped, in order to justify the imposition
of the death penalty. The evidence on record shows that other than the testimonies of the victim
and her grandmother, no independent proof was presented to show that Leney was below seven
(7) years of age when raped.

As such, the lower court should have imposed the penalty of reclusion perpetua and not death.
Further, inasmuch as the rape was not qualified by any of the circumstances under which the
death penalty should be imposed, the civil indemnity to be awarded to complaining witness
Leney Linayao should remain at ₱50,000.00. However, considering the trauma she suffered, we
deem it proper to award her moral damages of ₱50,000.00 although no proof of such entitlement
was presented, which is not necessary after all.

The assailed Decision of the trial court finding accused JHONNETTEL MAYORGA Y
LUMAGUE guilty of rape is AFFIRMED with the modification that the penalty of death is
reduced to reclusion perpetua. In addition to the civil indemnity of ₱50,000.00, accused is
further ordered to pay complaining witness Leney Linayao ₱50,000.00 for moral damages, plus
the costs.