Variance Doctrine
Section 4 in relation to Section 5 of Rule 120 of the Rules on Criminal Procedure provides for the "variance
doctrine":
SEC. 4. Judgment in case of variance between allegation and proof.—When there is variance between
the offense charged in the complaint or information and that proved, and the offense as charged is
included in or necessarily includes the offense proved, the accused shall be convicted of the offense
proved which is included in the offense charged, or of the offense charged which is included in the offense
proved.
SEC. 5. When an offense includes or is included in another.—An offense charged necessarily includes the
offense proved when some of the essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense charged is necessarily included in the
offense proved, when the essential ingredients of the former continue or form part of those constituting
the latter.
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Essentially, the issue for the Court’s resolution is whether petitioner can be convicted of the felony of
falsification of public document through reckless imprudence notwithstanding that the charge against him
in the Information was for the intentional felony of falsification of public document under Article 171(4) of
the RPC.
The Variance Rule (Sections 4 – 5, Rule 120): Accordingly, in case of variance between the allegation
and proof, a defendant may be convicted of the offense proved when the offense charged is included in
or necessarily includes the offense proved.
Parenthetically, the question that has to be resolved then is whether reckless imprudence resulting to
falsification of public document is necessarily included in the intentional felony of falsification of public
document under Article 171(4) of the RPC.
To stress, reckless imprudence resulting to falsification of public documents is an offense that is
necessarily included in the willful act of falsification of public documents, the latter being the greater
offense. As such, he can be convicted of reckless imprudence resulting to falsification of public documents
notwithstanding that the Information only charged the willful act of falsification of public documents.
Reference: Sevilla vs People, GR 194390 (2014) - Reckless Imprudence
In Sumingwa, the accused in Criminal Case Nos. 1649 and 1654 was charged with qualified rape but was
convicted for the lesser offense of acts of lasciviousness committed against a child under Article III, Section
5(b) of Republic Act No. 7610 91 since "there was no penetration, or even an attempt to insert [the
accused’s] penis into [the victim’s] vagina."92
In the instant case, no variance exists between what was charged and what was proven during trial. The
prosecution established beyond reasonable doubt all elements of the crime of rape through sexual assault.
XXX testified that he "felt something was inserted [into his] anus."93 The slightest penetration into one’s
sexual organ distinguishes an act of lasciviousness from the crime of rape. People v. Bonaagua 94
discussed this distinction:
It must be emphasized, however, that like in the crime of rape whereby the slightest penetration of the
male organ or even its slightest contact with the outer lip or the labia majora of the vagina already
consummates the crime, in like manner, if the tongue, in an act of cunnilingus, touches the outer lip of the
vagina, the act should also be considered as already consummating the crime of rape through sexual
assault, not the crime of acts of lasciviousness. Notwithstanding, in the present case, such logical
interpretation could not be applied. It must be pointed out that the victim testified that Ireno only touched
her private part and licked it, but did not insert his finger in her vagina. This testimony of the victim,
however, is open to various interpretation, since it cannot be identified what specific part of the vagina
was defiled by Ireno. Thus, in conformity with the principle that the guilt of an accused must be proven
beyond reasonable doubt, the statement cannot be the basis for convicting Ireno with the crime of rape
through sexual assault. 95 (Emphasis supplied)
People v. Bonaagua considers a woman’s private organ since most if not all existing jurisprudence on
rape involves a woman victim. Nevertheless, this interpretation can apply by analogy when the victim is a
man in that the slightest penetration to the victim’s anal orifice consummates the crime of rape through
sexual assault.
The gravamen of the crime is the violation of the victim’s dignity. The degree of penetration is not
important. Rape is an "assault on human dignity."96
