BARBADILLO, ANNA DOMINIQUE B. FCL-1B CRIM 1 JUSTICE AMPARO M.

CABOTAJE-TANG

[G.R. No. 88724. April 3, 1990] consequently, sentenced to suffer

This is an appeal from the conviction of On January 11, 1989, the Court of Appeals
appellant, Orita who was charged with issued a resolution setting aside its last decision
consummated rape and sentenced to life and forwarded the case to the Supreme Court,
imprisonment. considering the provision of Section 9(3) of Batas
Pambansa Blg. 129 and Section 17(3) of the
FACTS Judiciary Act of 1948.

On March 20, 1983, at about 1:30 AM, inside In this appeal, the accused assigns the
a boarding house at Victoria St., Poblacion, following errors: (1) the trial court erred in
Borongan, Eastern Samar, Ceilito Orita, a disregarding the substantial inconsistencies in
Philippine Constabulary (PC) soldier, using a the testimonies of the witnesses and; (2) the trial
Batangas knife, with threats and intimidation, court erred in declaring that the crime of
feloniously laid with Cristina S. Abayan, a 19- frustrated rape was committed by the accused.
year-old freshman student, against her will and
without her consent. The arguments raised by the accused as
regards to the first assignment of error were not
Upon being arraigned, Orita entered the plea validated and did not merit consideration on the
of not guilty to the crime of rape. After the grounds that:
witnesses testified and the exhibits were
admitted, the defense opted not to present any 1. The accused assails the testimonies of the
evidence and instead filed a Motion to Dismiss. victim and Pat. Donceras because they show
remarkable and crucial inconsistencies,
On August 5, 1985, the Regional Trial Court, showing signs of fabrication. The alleged
of Borongan, Eastern Samar rendered its inconsistencies in their testimonies are only
decision, finding Orita, guilty of frustrated rape, trivial and may in fact be justifiably
beyond reasonable doubt. The trial court was of considered as manifestations of truthfulness
the belief that there is no conclusive evidence of and such honest lapses do not necessarily
penetration of the genital organ of the victim impair their intrinsic credibility.
and thus convicted the accused of frustrated
rape only. With the aggravating circumstances of 2. Although, one of the alleged inconsistencies
dwelling and nighttime, with no mitigating deserves a little discussion which is, the
circumstance to offset, the accused is sentenced testimony of the victim that the accused
to imprisonment of 10 years and 1 day, as asked her to hold and guide his penis in order
minimum, to 12 years prision mayor, as to have carnal knowledge of her. According
maximum; and to indemnify Cristina S. Abayan, to the accused, this is strange because in this
the amount of P4,000.00, without subsidiary case the victim would be helping the
imprisonment in case of insolvency, and to pay aggressor's advances in consummating the
costs. act. In defense, the victim testified that the
accused was holding a knife during the
Not satisfied with the decision, the accused assault thus coercing her to compliance.
appealed to the Court of Appeals. It ruled to
modify the trial court's judgment, finding the The victim in this case did not only state that
appellant guilty of the crime of rape, and she was raped but she testified convincingly
BARBADILLO, ANNA DOMINIQUE B. FCL-1B CRIM 1 JUSTICE AMPARO M. CABOTAJE-TANG

on how the rape was committed. The RULING NO, Orita’s conviction of frustrated
victim's testimony from the time she rape is not proper – the crime was not of
knocked on the door of the municipal frustrated rape, instead it was ruled to be a
building up to the time she was brought to crime of consummated rape.
the hospital was substantiated by Pat.
Donceras. Interpreting the findings as NO, considering the nature, elements and
indicated in the medical certificate, the manner of execution of the crime of rape and
abrasions are conclusive proof of struggle jurisprudence on the matter, it is hardly
against force and violence exerted on the conceivable how the frustrated stage in rape
victim. Upon further inspection of the scene can ever be committed.
of the crime, the trial court was fully satisfied
that the narration of the incident and the The Supreme Court looked into Article 335 of
conditions presented were true. Including the Revised Penal Code, which defines the
the victim jumping off the balcony to escape. elements of rape and Article 6 on the discussion
Besides, the exposure of her private parts of execution of crimes as basis.
when she sought assistance from authorities
is enough indication that something unusual Considering the provision of Article 335 of the
happened to her unless she is mentally Revised Penal Code, which defines the elements
deranged, but the victim showed no signs of rape as having carnal knowledge of a woman
that she was insane. under the following circumstances: 1) by using
force or intimidation; 2) when the woman is
3. The accused questions also the failure of the deprived of reason or unconscious and 3) When
prosecution to present other witnesses to the woman is under 12 years of age, even though
validate the allegations in the complaint and neither of the circumstances mentioned in the
the non-presentation of the medico-legal two preceding paragraphs shall be present.
officer who actually examined the victim. As
for the non-presentation of the medico-legal While Article 6 of the Revised Penal Code on
officer who actually examined the victim, its discussion on consummated, frustrated, and
this was resolved by agreement of the attempted felonies, provides that the requisites
parties that another physician testified, as of a frustrated felony are: (1) that the offender
the medico-legal officer was not available. has performed all the acts of execution which
would produce the felony and (2) that the felony
Regarding the second assignment of error, the is not produced due to causes independent of
trial court was of the belief that there is no the perpetrator's will.
conclusive evidence of penetration of the genital
organ of the victim and thus convicted the Clearly, in the crime of rape, from the
accused of frustrated rape only. The accused moment the offender has carnal knowledge of
contends that there is no crime of frustrated his victim, he actually attains his purpose and
rape. The Solicitor General shares the same view. from that moment all the essential elements of
the offense have been accomplished as he has
ISSUES performed the last act necessary to produce the
crime. Thus, the felony is consummated. The set
(1) Whether or not the accused's conviction for uniform rule that for the consummation of rape,
frustrated rape is proper perfect penetration is not essential. Any
(2) Whether or not the frustrated stage applies penetration of the female organ by the male
to the crime of rape organ is sufficient. Entry of the labia or lips of the
female organ, without rupture of the hymen or
BARBADILLO, ANNA DOMINIQUE B. FCL-1B CRIM 1 JUSTICE AMPARO M. CABOTAJE-TANG

laceration of the vagina is sufficient to warrant In a prosecution for rape, the accused may be
conviction. convicted even on the sole basis of the victim's
testimony if credible. Moreover, Dr. Zamora's
Necessarily, rape is attempted if there is no testimony is merely confirmative and is not an
penetration of the female organ because not all indispensable element.
acts of execution was performed. The offender
merely initiated the commission of a felony Although the second assignment of error is
directly by overt acts. meritorious, it will not tilt the scale in favor of the
accused because after a thorough review of the
Thus, considering the nature, elements and records, it is found that the evidence is sufficient
manner of execution of the crime of rape and to prove his guilt beyond reasonable doubt of
jurisprudence on the matter, it is hardly the crime of consummated rape.
conceivable how the frustrated stage in rape can
ever be committed. The decision of the Regional Trial Court is hereby
MODIFIED. The accused Ceilito Orita is hereby
In the case of People v. Eriña [1927], where found guilty beyond reasonable doubt of the
the offender was guilty of frustrated rape, there consummated rape and sentenced to reclusion
being no conclusive evidence of penetration of perpetua as well as to indemnify the victim in the
the genital organ of the offended party. amount of P30,000.00.
However, it appears that this is a "stray" decision
since it has not been reiterated in subsequent RATIO DECIDENCI
decisions. Thus, this provision on frustrated rape
is considered a dead provision. Thus, the Eriña The essential element which distinguishes
case, might have only encouraged the law- attempted from frustrated felony is that, in the
making body to include the crime of frustrated latter, there is no intervention of a foreign cause
rape in the amendments in Article 335 of the or agency between the beginning of the
Revised Penal Code, as amended by Republic Act commission of the crime and the moment when
No. 2632 and Republic Act No. 4111 which all of the acts have been performed which should
provides for the penalty of death when the rape result in the consummated crime; while in the
is attempted or frustrated, and a homicide is former there is such intervention and the
committed by reason or on the occasion thereof. offender does not arrive at the point of
performing all of the acts which should produce
In deciding that there is no conclusive the crime. He is stopped short of that point by
evidence of penetration of the genital organ of some cause apart from his voluntary desistance.
the victim, the trial court relied on the testimony
of Dr. Zamora who testified that there was
uncertainty whether or not there was
penetration but did not rule out penetration of
the genital organ of the victim. As stated in the
medical certificate, the vulva was erythematous
(inflammed) and tender. Concerning this
testimony, the victim positively testified that
there was penetration, even if only partially.
Thus, nullifying the alleged variance between the
testimony of the victim and the medical
certificate.