FIRST DIVISION

[G.R. No. 166040. April 26, 2006.]

NIEL F. LLAVE, petitioner, vs. PEOPLE OF THE PHILIPPINES,

respondent.

DECISION

CALLEJO, SR., J : p

Before the Court is a Petition for Review of the Decision 1(1) of the Court of
Appeals (CA) in CA-G.R. CR No. 26962 affirming, with modification, the Decision
2(2) of the Regional Trial Court (RTC) of Pasay City, Branch 109, in Criminal Case
No. 02-1779 convicting Petitioner Neil F. Llave of rape.

On September 27, 2002, an Information charging petitioner (then only 12 years

old) with rape was filed with the RTC of Pasay City. The inculpatory portion of the
Information reads:

That on or about the 24th day of September 2002, in Pasay City, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, NEIL LLAVE Y FLORES, aka NIEL F. LLAVE, a
minor over nine (9) years of age and under fifteen (15) but acting with
discernment, by means of force threat and intimidation, did then and there
willfully, unlawfully, feloniously have carnal knowledge of the complainant,
DEBBIELYN SANTOS y QUITALES, a minor, seven (7) years of age, against
her will and consent.

Contrary to law. 3(3)

The Case for the Prosecution

The spouses Domingo and Marilou Santos were residents of Pasay City. 4(4)
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 One of their children, Debbielyn, was born on December 8, 1994. 5(5) In 2002, she
was a Grade II student at the Villamor Air Base Elementary School in Pasay City 6(6)
and attended classes from 12:00 noon to 6:00 p.m. 7(7)

Domingo eked out a living as a jeepney driver, while Marilou sold quail eggs
at a nearby church. 8(8) Adjacent to their house was that of Teofisto Bucud, a
barbecue vendor who would usually start selling at 6:30 p.m. 9(9) Next to Teofisto's
residence was a vacant house. 10(10)

Debbielyn testified that on September 24, 2002, she arrived home at past 6:00
p.m. She changed her clothes and proceeded to her mother's store. Marilou asked her
daughter to bring home the container with the unsold quail eggs. 11(11) Debbielyn
did as told and went on her way. As she neared the vacant house, she saw petitioner,
who suddenly pulled her behind a pile of hollow blocks which was in front of the
vacant house. There was a little light from the lamp post. 12(12) She resisted to no
avail. 13(13) Petitioner ordered her to lie down on the cement. Petrified, she
complied. He removed her shorts and underwear then removed his own. He got on top
of her. 14(14) She felt his penis being inserted into her vagina. He kissed her. 15(15)
She felt pain and cried. 16(16) She was sure there were passersby on the street near
the vacant house at the time. ESCacI

It was then that Teofisto came out of their house and heard the girl's cries. He
rushed to the place and saw petitioner on top of Debbielyn, naked from the waist
down. Teofisto shouted at petitioner, and the latter fled from the scene. Teofisto told
Debbielyn to inform her parents about what happened. 17(17) She told her father
about the incident. 18(18) Her parents later reported what happened to the police
authorities. 19(19) Debbielyn told the police that petitioner was a bad boy because he
was a rapist. 20(20)

Teofisto testified that at about 6:25 p.m. on September 24, 2002, he went out
of their house to get his barbecue grill. He heard someone moaning from within the
adjacent vacant house. 21(21) He rushed to the place and saw petitioner, naked from
waist down, on top of Debbielyn, making pumping motions on her anus. 22(22) The
girl was crying. He shouted at petitioner, "Hoy, bakit ginawa mo 'yan?" 23(23)
Petitioner hurriedly put his shorts on and fled. 24(24) Neighbors who had heard
Teofisto shouting arrived. 25(25) Later, Teofisto gave a written statement to the
police investigator regarding the incident. 26(26)

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 Domingo Santos testified that at about 6:30 p.m. that day, he was inside their
house. His daughter, Kimberly Rose, suddenly told him that Debbielyn had been
raped near the vacant house by petitioner. 27(27) He rushed to the place and found
her daughter crying. When he asked her what happened, she replied that she had been
abused. He brought Debbielyn to their house and then left. 28(28) He then looked for
petitioner and found him at his grandmother's house. A barangay tanod brought
petitioner to the barangay hall. 29(29) On September 25, 2002, he brought her
daughter to the Philippine General Hospital Child Protection Unit at Taft Avenue,
Manila where she was examined by Dr. Mariella S. Castillo.

Dr. Castillo declared on the witness stand that she was a physician at the Child
Protection Unit of the Philippine General Hospital. On September 25, 2002, she
interviewed the victim who told her "Masakit ang pepe ko," "Ni-rape ako." 30(30) Dr.
Castillo also conducted a genital examination on the child, and found no injury on the
hymen and perineum, but found scanty yellowish discharge between the labia
minora. 31(31) There was also a fresh abrasion of the perineal skin at 1 o'clock
position near the anal opening. 32(32) She declared that the findings support the
theory that blunt force or penetrating trauma (such as an erect penis, finger, or any
other foreign body 33(33) ) was applied to the perineal area 34(34) not more than six
or seven days before. 35(35) The abrasion could have been caused on September 24,
2002. She found no spermatozoa in the vaginal area or injury at the external genitalia;
36(36) neither did she find any other injury or abrasion on the other parts of the
victim's body. 37(37) She concluded that her findings were consistent with the
victim's claim that she was sexually abused by petitioner.

Barangay Tanod Jorge Dominguez, for his part, testified that on September 24,
2002, Marilou Santos arrived at the barangay hall and reported that her daughter had
been raped by petitioner who was then in his aunt's house at Cadena de Amor Street.
Barangay Captain Greg Florante ordered him and Barangay Tanod Efren Gonzales to
proceed to Cadena de Amor Street and take the boy into custody, and they did as they
were told. 38(38)

The Case for the Accused

Petitioner, through counsel, presented Dr. Castillo as witness. She declared that
the abrasions in the perineal area could have been caused while the offender was on
top of the victim. 39(39) She explained that the distance between the anus and the
genital area is between 2.5 to 3 centimeters. 40(40) The abrasion was located at 1/4 of

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 an inch from the anal orifice. DICSaH

Petitioner testified and declared that he was a freshman at the Pasay City South
High School. 41(41) He had been one of the three outstanding students in grade
school and received awards such as Best in Mathematics. 42(42) He also finished a
computer course and received a Certificate of Completion from the Philippine Air
Force Management Information Center. 43(43) He denied having raped the private
complainant. He declared that at 6:30 p.m. on September 24, 2002, he was outside of
their house to buy rice in the carinderia 44(44) and he saw her on his way back.
45(45) He also met his father, who asked him what he had done to their neighbor. He
was also told that the victim's father was so angry that the latter wanted to kill him.
46(46) He did not ask his father for the name of the angry neighbor. He was also told
to pass by Cadena de Amor Street in going to his aunt's house. Petitioner also
declared that his mother prodded him to go to his aunt's house. 47(47) Later,
Domingo and Barangay Tanod Jorge Dominguez arrived at his aunt's house and
brought him to the barangay hall. He did not know of any reason why Debbielyn and
her parents would charge him with rape. 48(48)

Petitioner also declared that he played cards with Debbielyn. 49(49) While
confined at the Pasay City Youth Home during trial, he had a crush on "Issa," a young
female inmate. Using a piece of broken glass (bubog) about half-an-inch long, he
inscribed her name on his right thigh, left leg and left arm. 50(50)

Nida Llave testified and identified her son's Certificate of Live Birth, in which
it appears that he was born on March 6, 1990. 51(51) She declared that at about 6:30
p.m. on September 24, 2000, Marilou Santos and Marilyn Bucud arrived in their
house looking for her son. According to Marilyn, her son had raped the private
complainant. She went to their house to look for her son and came across Domingo
Santos who threatened to kill her son. She and her husband proceeded to the house of
his sister Josefina at Cadena de Amor Street where petitioner had hidden for a while.
52(52)

At the conclusion of the trial, the court rendered judgment convicting Neil of
the crime charged. The decretal portion of the decision reads:

FROM ALL THE FOREGOING, the Court opines that the prosecution
has proven the guilt of the . . . Niel Llave y Flores beyond reasonable doubt
when he forcibly pulled the complainant towards the vacant lot, laid on top of
her and had carnal knowledge with the [complainant] against her will and
consent who is only seven (7) years old (sic). Moreover, he being a minor, he
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 cannot be meted with the Death penalty.

WHEREFORE, the Court finds the CICL [Child in Conflict with the
Law] Niel Llave y Flores guilty beyond reasonable doubt, and crediting him
with the special mitigating circumstance of minority, this Court hereby
sentences him to prision mayor minimum, Six (6) years and One (1) day to
Eight (8) years, and pay civil indemnity of Fifty Thousand Pesos
(Php50,000.00). 53(53)

The trial court declared that based on the evidence of the prosecution that
petitioner pushed the victim towards the vacant house and sexually abused her,
petitioner acted with discernment. It also considered petitioner's declaration that he
had been a consistent honor student. 54(54)

Petitioner appealed the decision to the CA, where he averred the following in
his Brief as appellant therein:

THE LOWER COURT ERRED WHEN IT DISREGARDED THE

MATERIAL INCONSISTENCIES OF THE TESTIMONY OF
COMPLAINING WITNESS WITH THAT OF THE MEDICAL REPORT ON
THE FACTUAL ALLEGATION OF BLEEDING.

II

THE LOWER COURT ERRED WHEN IT GAVE CREDENCE TO THE

TESTIMONY OF THE PROSECUTION WITNESS TEOFISTO BUCUD
WHO HAS REASON TO FABRICATE A SCENARIO AGAINST
ACCUSED-APPELLANT BECAUSE HE HAS PERSONAL VENDETTA
AGAINST THE LATTER'S FAMILY/RELATIVES.

III

THE LOWER COURT ERRED IN UPHOLDING THE THEORY OF THE

PROSECUTION OF RAPE BY HAVING CARNAL KNOWLEDGE, BEING
CONTRARY TO THE PHYSICAL EVIDENCE. 55(55)

The CA rendered judgment affirming the decision with modification as to the

penalty meted on him.

WHEREFORE, the decision subject of the instant appeal is hereby

MODIFIED in that the accused-appellant is sentenced to an indeterminate
penalty of two (2) years and four (4) months of prision correccional medium as
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 the minimum to eight (8) years and one (1) day of prision mayor medium as the
maximum. Additionally, the accused-appellant is ordered to pay the
complaining witness the amount of P50,000 by way of moral damages and
P20,000 by way of exemplary damages.

SO ORDERED. 56(56)

Petitioner filed a Motion for the Reconsideration, 57(57) contending that the
prosecution failed to adduce proof that he acted with discernment; hence, he should
be acquitted. The appellate court denied the motion in a Resolution 58(58) dated
November 12, 2004 on the following finding:

As regards the issue of whether the accused-appellant acted with

discernment, his conduct during and after the "crime" betrays the theory that as
a minor, the accused-appellant does not have the mental faculty to grasp the
propriety and consequences of the act he made. As correctly pointed out by the
prosecution, the fact that forthrightly upon discovery, the accused-appellant fled
the scene and hid in his grandmother's house intimates that he knew that he did
something that merits punishment.

Contrary to the urgings of the defense, the fact that the

accused-appellant is a recipient of several academic awards and is an honor
student further reinforces the finding that he [is] possessed [of] intelligence well
beyond his years and is thus poised to distinguish, better at least than other
minors his age could, which conduct is right and which is morally
reprehensible. 59(59)

Petitioner now raises the following issues and arguments in the instant petition
before this Court:

ISSUES

WHETHER OR NOT EVIDENCE WAS SUFFICIENT TO CONVICT

PETITIONER BEYOND REASONABLE DOUBT.

II

WHETHER OR NOT PETITIONER, WHO WAS A MINOR ABOVE 9

YEARS BUT BELOW 15 YEARS OF AGE AT THE TIME OF THE CRIME,
ACTED WITH DISCERNMENT.

III
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 WHETHER OR NOT PETITIONER WAS DENIED DUE PROCESS OF
LAW.

ARGUMENTS

THE MATERIAL INCONSISTENCIES BETWEEN THE TESTIMONY OF

COMPLAINING WITNESS WITH THE MEDICAL REPORT BELIE THE
FINDING OF RAPE.

II

PRIVATE COMPLAINANT IS NOT A CREDIBLE WITNESS.

III

PETITIONER ACTED WITHOUT DISCERNMENT.

IV

THE TESTIMONY RELIED UPON BY THE PROSECUTION IS HEARSAY.

THE COMPLAINT IS FABRICATED.

VI

PETITIONER WAS DENIED DUE PROCESS OF LAW. 60(60)

The issues raised by the petitioner in this case may be summarized as follows:
(1) whether he was deprived of his right to a preliminary investigation; (2) whether he
had carnal knowledge of the private complainant, and if in the affirmative, whether he
acted with discernment in perpetrating the crime; (3) whether the penalty imposed by
the appellate court is correct; and (4) whether he is liable to pay moral damages to the
private complainant.

On the first issue, petitioner avers that he was deprived of his right to a
preliminary investigation before the Information against him was filed.

On the second issue, petitioner claims that the prosecution failed to prove
beyond reasonable doubt that he had carnal knowledge of Debbielyn. He insists that
her testimony is inconsistent on material points. He points out that she claimed to
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 have felt pain in her vagina when petitioner inserted his penis to the point that she
cried; this, however, is negated by Dr. Castillo's report stating that there was no
evidence of injury on the victim's external genitalia. Petitioner maintains that as
against the victim's testimony and that of Dr. Castillo's report, the latter should
prevail.

According to petitioner, mere touching of the female organ will not suffice as
factual basis of conviction for consummated rape. Moreover, the victim's testimony
lacks credibility in view of her admission that, while she was being allegedly ravished
by him, there were passersby along the street. Besides, petitioner avers, an abrasion
may be caused by an invasion of the body through the protective covering of the skin.
Petitioner insists that the prosecution failed to prove the cause of the abrasion.

Petitioner also claims that the victim was tutored or coached by her parents on
her testimony before the trial court. Dr. Castillo testified that when she interviewed
Debbielyn, the latter admitted to her that she did not understand the meaning of the
word "rape" and its Filipino translation, "hinalay," and that the genital examination of
the girl was at the insistence of the latter's parents.

Petitioner avers that Teofisto Bucud's testimony has no probative weight

because and had an ill-motive to testify against him. Petitioner stated, on
cross-examination, that his uncle, Boy, had the house rented by Teofisto demolished.
Petitioner avers that the witness persuaded the victim's parents to complain against
him, as gleaned from the testimony of Police Investigator Milagros Carroso.

For its part, the Office of the Solicitor General (OSG) avers that petitioner was
subjected to an inquest investigation under Section 7, Rule 112 of the Revised Rules
of Criminal Procedure, as gleaned from the Certification of the City Prosecutor
incorporated in the Information. It avers that the absence of external injuries does not
negate rape; neither is it necessary that lacerations be found on the hymen of a victim.
Rape is consummated if there is some degree of penetration within the vaginal
surface. Corroborative evidence is not necessary to prove rape. As long as the
testimony of the victim is credible, such testimony will suffice for conviction of
consummated rape. When the victim testified that she was raped, she was, in effect,
saying all that is necessary to prove that rape was consummated. Petitioner's evidence
to prove ill-motive on the part of Teofisto Bucud in testifying against him is at best
flimsy. Moreover, it is incredible that the victim and her parents would charge
petitioner with rape solely on Teofisto's proddings.

The OSG insists that the petitioner acted with discernment before, during, and

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 after the rape based on the undisputed facts. The submission of the OSG follows:

Petitioner argues that since he was only 12 years old at the time of the
alleged rape incident, he is presumed to have acted without discernment under
paragraph 3 of Article 12 of the Revised Penal Code. Under said provision, the
prosecution has the burden of proving that he acted with discernment. In the
instant case, petitioner insists that there was no evidence presented by the
prosecution to show that he acted with discernment. Hence, he should be
exempt from criminal liability.

Petitioner's arguments are bereft of merit.

Discernment, as used in Article 12(3) of the Revised Penal Code is

defined as follows: "the discernment that constitutes an exception to the
exemption from criminal liability of a minor under fifteen (15) years of age but
over nine (9), who commits an act prohibited by law, is his mental capacity to
understand the difference between right and wrong" (People v. Doquena, 68
Phil. 580 [1939]). For a minor above nine but below fifteen years of age, he
must discern the rightness or wrongness of the effects of his act (Guevarra v.
Almodova, G.R. No. 75256, January 26, 1989).

Professor Ambrocio Padilla, in his annotation of Criminal Law (p. 375,

1998 Ed.), writes that "discernment is more than the mere understanding
between right and wrong. Rather, it means the mental capacity of a minor
between 9 and 15 years of age to fully appreciate the consequences of his
unlawful act" (People v. Navarro, [CA] [51 O.G. 4062]). Hence, in judging
whether a minor accused acted with discernment, his mental capacity to
understand the difference between right and wrong, which may be known and
should be determined by considering all the circumstances disclosed by the
record of the case, his appearance, his attitude and his behavior and conduct, not
only before and during the commission of the act, but also after and even during
the trial should be taken into consideration (People v. Doquena, supra).

In the instant case, petitioner's actuations during and after the rape
incident, as well as his behavior during the trial showed that he acted with
discernment.

The fact appears undisputed that immediately after being discovered by

the prosecution's witness, Teofisto Bucud, petitioner immediately stood up and
ran away. Shortly thereafter, when his parents became aware of the charges
against him and that private complainant's father was looking for him, petitioner
went into hiding. It was not until the Barangay Tanod came to arrest him in his
grandmother's house that petitioner came out in the open to face the charges
against him. His flight as well as his act of going into hiding clearly conveys the
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 idea that he was fully aware of the moral depravity of his act and that he knew
he committed something wrong. Otherwise, if he was indeed innocent or if he
was not least aware of the moral consequences of his acts, he would have
immediately confronted private complainant and her parents and denied having
sexually abused their daughter.

During the trial, petitioner submitted documentary evidence to show that

he was a consistent honor student and has, in fact, garnered several academic
awards. This allegation further bolstered that he acted with discernment, with
full knowledge and intelligence. The fact that petitioner was a recipient of
several academic awards and was an honor student further reinforces the finding
that he was possessed of intelligence well beyond his years and thus was able to
distinguish, better than other minors of his age could, which conduct is right and
which is morally reprehensible. Hence, although appellant was still a minor of
twelve years of age, he possessed intelligence far beyond his age. It cannot then
be denied that he had the mental capacity to understand the difference between
right and wrong. This is important in cases where the accused is minor. It is
worthy to note that the basic reason behind the enactment of the exempting
circumstances under Article 12 of the Revised Penal Code is the complete
absence of intelligence, freedom of action, or intent on the part of the accused.
In expounding on intelligence as the second element of dolus, the Supreme
Court has stated: "The second element of dolus is intelligence; without this
power, necessary to determine the morality of human acts to distinguish a licit
from an illicit act, no crime can exist, and because . . . the infant has no
intelligence, the law exempts (him) from criminal liability" (Guevarra v.
Almodovar, 169 SCRA 476 [1989], at page 482).

The foregoing circumstances, from the time the incident up to the time
the petitioner was being held for trial, sufficiently satisfied the trial court that
petitioner acted with discernment before, during and after the rape incident. For
a boy wanting in discernment would simply be gripped with fear or keep mum.
In this case, petitioner was fully aware of the nature and illegality of his
wrongful act. He should not, therefore, be exempted from criminal liability. The
prosecution has sufficiently proved that petitioner acted with discernment.
61(61)

In reply, petitioner asserts that the only abrasion found by Dr. Castillo was on
the peri-anal skin and not in the labia of the hymen. He further insists that there can
be no consummated rape absent a slight penetration on the female organ. It was
incumbent on the prosecution to prove that the accused acted with discernment but
failed. The mere fact that he was an honor student is not enough evidence to prove
that he acted with discernment.

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 The petition is not meritorious.

On the first issue, petitioner's contention that he was deprived of his right to a
regular preliminary investigation is barren of factual and legal basis. The record
shows that petitioner was lawfully arrested without a warrant. Section 7, Rule 112 of
the Revised Rules of Criminal Procedure provides:

SEC. 7. When accused lawfully arrested without warrant. — When

a person is lawfully arrested without a warrant involving an offense which
requires a preliminary investigation, the complaint or information may be filed
by a prosecutor without need of such investigation provided an inquest has been
conducted in accordance with existing rules. In the absence or unavailability of
an inquest prosecutor, the complaint may be filed by the offended party or a
peace officer directly with the proper court on the basis of the affidavit of the
offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask
for a preliminary investigation in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal Code, as amended,
in the presence of his counsel. Notwithstanding the waiver, he may apply for
bail and the investigation must be terminated within fifteen (15) days from its
inception.

After the filing of the complaint or information in court without a

preliminary investigation, the accused may, within five (5) days from the time
he learns of its filing, ask for a preliminary investigation with the same right to
adduce evidence in his defense as provided for in this Rule.

As gleaned from the Certification 62(62) of the City Prosecutor which was
incorporated in the Information, petitioner did not execute any waiver of the
provisions of Article 125 of the Revised Penal Code before the Information was filed.
He was arraigned with the assistance of counsel on October 10, 2002, and thereafter
filed a petition for bail. 63(63) Petitioner's failure to file a motion for a preliminary
investigation within five days from finding out that an Information had been filed
against him effectively operates as a waiver of his right to such preliminary
investigation. 64(64)

On the second issue, a careful review of the records shows that the prosecution
adduced evidence to prove beyond reasonable doubt that petitioner had carnal
knowledge of the private complainant as charged in the Information. In People v.
Morata 65(65) the Court ruled that penetration, no matter how slight, or the mere
introduction of the male organ into the labia of the pudendum, constitutes carnal
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 knowledge. Hence, even if the penetration is only slight, the fact that the private
complainant felt pains, points to the conclusion that the rape was consummated.
66(66)

From the victim's testimony, it can be logically concluded that petitioner's

penis touched the middle part of her vagina and penetrated the labia of the pudendum.
She may not have had knowledge of the extent of the penetration; however, her
straightforward testimony shows that the rape passed the stage of consummation.
67(67) She testified that petitioner dragged her behind a pile of hollow blocks near the
vacant house and ordered her to lie down. He then removed her shorts and panty and
spread her legs. He then mounted her and inserted his penis into her vagina:

Fiscal Barrera:

Q: From what time up to what time?

A: From 12:00 o'clock noon up to 6:00 p.m.

Q: September 24, 2002 and going over the calendar, it was Tuesday. Did
you go to school from 12:00 o'clock noon up to 6:00 p.m.?

A: Yes, Sir, on the same date I went to school.

Q: At about 6:00 p.m., Sept. 24, 2002, where were you?

A: I went home.

Q: And by whom you are referring to your house at 1-C Carnation St., R.
Higgins, Maricaban, Pasay City?

A: Yes, Sir.

Q: And what did you do after you went home?

A: I changed my clothes and then I proceeded to the store of my mother.

Q: And where is that store of your mother where you went?

A: It is near our house, walking distance.

Q: What is your mother selling in that store?

A: She sells quail eggs.

Q: And were you able to immediately go to the store of your mother where
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 she was selling quail eggs?

A: Yes, sir.

Q: And that was past 6:00 p.m. already?

A: Yes, sir.

Q: And what happened when you went to the store where your mother is
selling quail eggs past 6:00 p.m.?

A: My mother asked me to bring home something.

Q: What were these things you were asked by your mother to bring home?

A: The things she used in selling.

Q: And did you obey what your mother told you to bring home something?

A: Yes, Sir.

Q: And what happened to you in going to your house?

A: Totoy pulled me.

Q: Pulled you where?

A: Totoy pulled me towards an uninhabited house.

Q: What happened after Totoy pulled you in an uninhabited house?

A: He told me to lie down on the cement.

Q: What happened after he laid you down on the cement?

A: He removed my shorts and panty. He also removed his shorts.

Q: After Totoy removed your shorts and panty and he also removed his
shorts, what happened next?

A: He inserted his penis inside my vagina.

Q: What did you feel when Totoy inserted his penis inside your vagina?

A: It was painful.

Q: Aside from inserting his penis inside your vagina, what else did he do to
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 you?

A: He kissed me on my lips.

Q: After Totoy inserted his penis inside your vagina and kissed you on your
lips, what did you do?

A: I cried.

Q: What happened when you were crying when he inserted his penis inside
your vagina and kissed you on your lips. What happened next?

A: Somebody heard me crying.

Q: Who heard you crying?

A: Kuya Teofe, Sir.

Q: What happened after you cried and when somebody heard you crying?

A: Totoy ran away.

Q: After Totoy ran away, what happened next?

A: When Totoy ran away, I was left and Kuya Teofe told me to tell the
matter to my parents.

Q: Did you tell your parents what Totoy did to you?

A: Yes, Sir. 68(68)

On cross-examination, the victim was steadfast in her declarations:

ATTY. BALIAD:

Q: Again, in what particular position were you placed by Totoy when he

inserted his penis inside your vagina? cHITCS

A: I was lying down.

Q: Aside from lying down, how was your body positioned at that time?

A: He placed on top of me.

Q: After he placed on top of you, what else did he do to you, if any?

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 A: He started to kiss me and then he inserted his penis inside my vagina.

Q: Did you feel his penis coming in into your vagina?

A: Yes, Sir.

Q: Are you sure that his penis was inserted inside your vagina?

A: Yes, Sir. 69(69)

When questioned on cross-examination whether she could distinguish a vagina

from an anus, the victim declared that she could and proceeded to demonstrate. She
reiterated that the penis of petitioner penetrated her vagina, thus, consummating the
crime charged:

Atty. Baliad:

Q: Do you recall having stated during the last hearing that the accused, Neil
Llave or "Totoy" inserted his penis in your vagina, do you recall that?

A: Yes, Sir.

Q: And likewise, you testified that you feel that the penis of Neil entered
your vagina?

A: Yes, Sir.

Q: Could you distinguish vagina from your anus?

A: Yes, Sir.

Q: Where is your "pepe"?

A: (Witness pointing to her vagina.)

Q: Where is your anus?

A: (Witness pointing at her back, at the anus.)

Q: In your statement, am I correct to say that Neil, the accused in this case
penetrated only in your vagina and not in your anus?

A: Yes, Sir.

Q: So that, your anus was not even touched by the accused neither by his

Copyright 1994-2021 CD Technologies Asia, Inc. Jurisprudence 1901 to 2021 First Release 15
 penis touched any part of your anus?

A: He did not insert anything on my anus, Sir. 70(70)

While it is true that Dr. Castillo did not find any abrasion or laceration in the
private complainant's genitalia, such fact does not negate the latter's testimony the
petitioner had carnal knowledge of her. The absence of abrasions and lacerations does
not disprove sexual abuses, especially when the victim is a young girl as in this case.
71(71) According to Dr. Castillo, the hymen is elastic and is capable of stretching and
reverting to its original form. 72(72) The doctor testified that her report is compatible
with the victim's testimony that she was sexually assaulted by petitioner:

Atty. Baliad:

Q: Do you recall having stated during the last hearing that the accused, Neil
Llave or "Totoy" inserted his penis in your vagina, do you recall that?

A: Yes, Sir.

Q: And likewise, you testified that you feel (sic) that the penis of Neil
entered your vagina?

A: Yes, Sir.

Q: Could you distinguish vagina from your anus?

A: Yes, Sir.

Q: Where is your "pepe"?

A: (Witness pointing to her vagina.)

Q: Where is your anus?

A: (Witness pointing at her back, at the anus.)

Q: In your statement, am I correct to say that Neil, the accused in this case
penetrated only in your vagina and not in your anus?

A: Yes, Sir.

Q: So that, your anus was not even touched by the accused neither by his
penis touched any part of your anus?

A: He did not insert anything on my anus, Sir.

Copyright 1994-2021 CD Technologies Asia, Inc. Jurisprudence 1901 to 2021 First Release 16
 xxx xxx xxx

Fiscal Barrera:

Q: Based on your testimony doctor, and the medico genital examination

propounded on the report that the victim here, Debbielyn Santos is
complaining that around 6:00 in the evening of September 24, 2002, she
was sexually abused and that on the following day, September 25, you
interviewed her and stated to you that her genitalia was hurting and in
binocular (sic) "masakit ang pepe ko, ni-rape ako," would your findings
as contained in this Exh. B and C be compatible with the allegation if
the minor victim that she was sexually abused on September 24. 2002 at
around 6:00 p.m.?

Atty. Baliad:

Objection, Your Honor. The one who narrated the incident is the mother.

Court:

What is your objection?

Atty. Baliad:

The objection, Your Honor, is the question propounded is that it was the
minor who made the complaint regarding the allegation.

Fiscal Barrera:

The answer were provided. . . .

Court:

The doctor is being asked whether or not her findings is compatible with
the complaint of the minor. Overruled. Answer.

Witness:

A It is compatible with the allegation of the minor.

Fiscal Barrera:

Confronting you again with your two (2) medico-genital documents, the
Provincial and Final Report mark[ed] in evidence as Exhs. B and C, at
the lower portion of these two exhibits there appears to be a signature
above the typewritten word, Mariella Castillo, M.D., whose signature is
Copyright 1994-2021 CD Technologies Asia, Inc. Jurisprudence 1901 to 2021 First Release 17
 that doctor?

A Both are my signatures, Sir. 73(73)

Dr. Castillo even testified that the abrasion near the private complainant's anal
orifice could have been caused by petitioner while consummating the crime charged:

Fiscal Barrera:

Q: With your answer, would it be possible doctor that in the process of the
male person inserting his erect penis inside the vagina, in the process,
would it be possible that this abrasion could have been caused while in
the process of inserting the penis into the vagina touch the portion of the
anus where you find the abrasion?

A: It is possible, Sir.

Q: Now, are you aware, in the course of your examination, that the alleged
perpetrator is a 12-year-old minor?

A: I only found it out, Sir, when I testified.

Q: Do you still recall your answer that a 12-year-old boy could cause an
erection of his penis?

A: Yes, sir.

Q: To enlight[en] us doctor, we, not being a physician, at what age could a

male person can have erection?

A: Even infants have an erection. 74(74)

Petitioner's contention that the private complainant was coached by her parents
into testifying is barren of merit. It bears stressing that the private complainant
testified in a straightforward and spontaneous manner and remained steadfast despite
rigorous and intensive cross-examination by the indefatigable counsel of the
petitioner. She spontaneously pointed to and identified the petitioner as the
perpetrator.

It is inconceivable that the private complainant, then only a seven-year old

Grade II pupil, could have woven an intricate story of defloration unless her plaint
was true. 75(75) The Presiding Judge of the trial court observed and monitored the
private complainant at close range as she testified and found her testimony credible.
Case law is that the calibration by the trial court of the evidence on record and its
Copyright 1994-2021 CD Technologies Asia, Inc. Jurisprudence 1901 to 2021 First Release 18
 assessment of the credibility of witnesses, as well as its findings of facts and the
conclusions anchored on said findings, are accorded conclusive effect by this Court
unless facts and circumstances of substance were overlooked, misconstrued or
misinterpreted, which, if considered would merit a nullification or reversal of the
decision. We have held that when the offended party is young and immature, from the
age of thirteen to sixteen, courts are inclined to give credence to their account of what
transpired, considering not only their relative vulnerability but also the shame and
embarrassment to which they would be exposed if the matter to which they testified is
not true. 76(76)

Neither do we lend credence to petitioner's claim that the charge against him is
but a fabrication and concoction of the private complainant's parents. Indeed,
petitioner admitted in no uncertain terms that the spouses had no ill-motive against
him. Thus, Neil testified as follows:

Fiscal Barrera:

Q: As you testified earlier that you have played post cards with Debbielyn
Santos alias Lyn-lyn and you have no quarrel or misunderstanding with
Lyn-lyn. Do you know of any reason why Lyn-lyn complaint (sic)
against you for sexual abuse?

A: I don't know of any reason, Sir.

Q: You also testified that you do not have any quarrel or misunderstanding
with Lyn-lyn's parents, spouses Domingo Santos, Jr. and Marilou
Santos, do you think of any reason as to why they would file a complaint
against you for molesting their 7-year-old daughter?

A: I do not know of any reason why they filed a complaint against me, Sir.

Fiscal Barrera:

That would be all, Your Honor. 77(77)

There is no evidence that the parents of the offended party coached their
daughter before she testified. No mother or father would stoop so low as to subject
their daughter to the tribulations and the embarrassment of a public trial knowing that
such a traumatic experience would damage their daughter's psyche and mar her life if
the charge is not true. 78(78)

On the other hand, when the parents learned that their daughter had been
assaulted by petitioner, Domingo tried to locate the offender and when he failed, he
Copyright 1994-2021 CD Technologies Asia, Inc. Jurisprudence 1901 to 2021 First Release 19
 and his wife reported the matter to the barangay authorities. This manifested their
ardent desire to have petitioner indicted and punished for his delictual acts.

That petitioner ravished the victim not far from the street where residents
passed by does not negate the act of rape committed by petitioner. Rape is not a
respecter of time and place. The crime may be committed by the roadside and even in
occupied premises. 79(79) The presence of people nearby does not deter rapists from
committing the odious act. 80(80) In this case, petitioner was so daring that he
ravished the private complainant near the house of Teofisto even as commuters
passed by, impervious to the fact that a crime was being committed in their midst.

Case law has it that in view of the intrinsic nature of rape, the only evidence
that can be offered to prove the guilt of the offender is the testimony of the offended
party. Even absent a medical certificate, her testimony, standing alone, can be made
the basis of conviction if such testimony is credible. Corroborative testimony is not
essential to warrant a conviction of the perpetrator. 81(81) Thus, even without the
testimony of Teofisto Bucud, the testimonies of the offended party and Dr. Castillo
constitute evidence beyond reasonable doubt warranting the conviction of petitioner.

Teofisto's testimony cannot be discredited by petitioner simply because his

uncle caused the demolition of the house where Teofisto and his family were residing.
It bears stressing that Teofisto gave a sworn statement to the police investigator on the
very day that the petitioner raped Debbielyn and narrated how he witnessed the crime
being committed by the petitioner. 82(82) In the absence of proof of improper motive,
the presumption is that Teofisto had no ill-motive to so testify, hence, his testimony is
entitled to full faith and credit. 83(83)

The trial court correctly ruled that the petitioner acted with discernment when
he had carnal knowledge of the offended party; hence, the CA cannot be faulted for
affirming the trial court's ruling.

Article 12, paragraph 3 of the Revised Penal Code provides that a person over
nine years of age and under fifteen is exempt from criminal liability, unless he acted
with discernment. The basic reason behind the exempting circumstance is complete
absence of intelligence, freedom of action of the offender which is an essential
element of a felony either by dolus or by culpa. Intelligence is the power necessary to
determine the morality of human acts to distinguish a licit from an illicit act. 84(84)
On the other hand, discernment is the mental capacity to understand the difference
between right and wrong. The prosecution is burdened to prove that the accused acted
with discernment by evidence of physical appearance, attitude or deportment not only
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 before and during the commission of the act, but also after and during the trial. 85(85)
The surrounding circumstances must demonstrate that the minor knew what he was
doing and that it was wrong. Such circumstance includes the gruesome nature of the
crime and the minor's cunning and shrewdness.

In the present case, the petitioner, with methodical fashion, dragged the
resisting victim behind the pile of hollow blocks near the vacant house to insure that
passersby would not be able to discover his dastardly acts. When he was discovered
by Teofisto Bucud who shouted at him, the petitioner hastily fled from the scene to
escape arrest. Upon the prodding of his father and her mother, he hid in his
grandmother's house to avoid being arrested by policemen and remained thereat until
barangay tanods arrived and took him into custody.

The petitioner also testified that he had been an outstanding grade school
student and even received awards. While in Grade I, he was the best in his class in his
academic subjects. He represented his class in a quiz bee contest. 86(86) At his the
age of 12, he finished a computer course.

In People v. Doqueña, 87(87) the Court held that the accused-appellant therein
acted with discernment in raping the victim under the following facts:

Taking into account the fact that when the accused Valentin Doqueña
committed the crime in question, he was a 7th grade pupil in the intermediate
school of the municipality of Sual, Pangasinan, and as such pupil, he was one of
the brightest in said school and was a captain of a company of the cadet corps
thereof, and during the time he was studying therein he always obtain excellent
marks, this court is convinced that the accused, in committing the crime, acted
with discernment and was conscious of the nature and consequences of his act,
and so also has this court observed at the time said accused was testifying in his
behalf during the trial of this case. 88(88)

The CA ordered petitioner to pay P50,000.00 as moral damages and

P20,000.00 as exemplary damages. There is no factual basis for the award of
exemplary damages. Under Article 2231, of the New Civil Code, exemplary damages
may be awarded if the crime was committed with one or more aggravating
circumstances. In this case, no aggravating circumstance was alleged in the
Information and proved by the People; hence, the award must be deleted.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of

merit. The decision of the Court of Appeals in CA-G.R. CR No. 26962 is
AFFIRMED WITH MODIFICATION that the award of exemplary damages is
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 DELETED. aADSIc

SO ORDERED.

Panganiban, C.J., Ynares-Santiago and Austria-Martinez, JJ., concur.

Chico-Nazario, J., is on official leave.

Footnotes
1. Penned by Associate Justice Bienvenido L. Reyes, with Associate Justices Conrado
M. Vasquez, Jr. and Hakim S. Abdulwahid, concurring.
2. Penned by Judge Lilia C. Lopez.
3. Records, p. 2.
4. TSN, November 18, 2000, p. 2.
5. Exhibit "H-2," records, p. 153.
6. TSN, October 24, 2002, p. 4.
7. TSN, November 4, 2002, p. 11.
8. Id.
9. November 11, 2002, p. 4.
10. Exhibits "M" and "5," records, pp. 158-159.
11. TSN, November 4, 2002, pp. 11-12.
12. Id. at 19.
13. Id. at 18.
14. Id. at 12 and 20.
15. Id. at 20.
16. Id. at 13.
17. Id. at 13-17.
18. Id. at 17.
19. Id. at 18.
20. TSN, November 6, 2002, p. 6.
21. TSN, November 11, 2001, p. 5.
22. Id. at 6-7.
23. TSN, November 13, 2002, p. 10.
24. TSN, November 11, 2002, p. 6.
25. Id. at 7.
26. Exhibit "K," records, p. 156.
27. TSN, November 18, 2002, pp. 4-5.
28. Id. at 12-13.
29. Id. at 5-6.
30. TSN, October 30, 2002, p. 7.
31. Exhibit "B," records, p. 147.
32. TSN, October 30, 2002, p. 10.
33. Id. at 15.
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 34. Exhibit "G," records, p. 152.
35. TSN, October 30, 2002, p. 21.
36. Exhibit "B," records, p. 147.
37. TSN, October 30, 2002, p. 21.
38. TSN, November 19, 2002, pp. 2-5.
39. TSN, November 21, 2002, p. 18.
40. Id. at 22.
41. Id. at 43.
42. Id. at 54-55.
43. Exhibit "12," records, p. 91.
44. TSN, November 21, 2002, p. 45.
45. Id. at 48.
46. Id. at 46-47.
47. Id. at 70.
48. Id. at 72.
49. Id. at 49.
50. Records, p. 52; TSN, October 29, 2002, pp. 6-7.
51. Exhibit "I," records, p. 154.
52. TSN, November 21, 2002, pp. 8-9.
53. Records, p. 269.
54. Id.
55. CA rollo, p. 53.
56. Id. at 135.
57. Id. at 138-156.
58. Id. at 191-193.
59. Id. at 192-193.
60. Rollo, pp. 14-15.
61. Rollo, pp. 128-131.
62. Records, p. 1.
63. Id. at 13-17.
64. See People v. Arce, Jr., 417 Phil. 18 (2001).
65. G.R. No. 140011-16, March 12, 2001, 354 SCRA 259, 275.
66. People v. Rafales, G.R. No. 133477, January 21, 2000, 323 SCRA 13, 27.
67. See People v. Morata, supra.
68. TSN, November 4, 2002, pp. 11-13.
69. Id. at 20.
70. TSN, November 6, 2002, pp. 2-3.
71. People v. Osing, G.R. No. 138959, January 16, 2001, 349 SCRA 310, 318.
72. TSN, October 30, 2002, pp. 22-23.
73. TSN, October 30, 2002, pp. 13-14.
74. TSN, November 21, 2002, p. 23.
75. See People v. Pardillo, Jr., 346 Phil. 971, 984 (1997).
76. People v. Doqueña, 68 Phil. 580, 583 (1939).
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 77. TSN, November 21, 2002, pp. 71-72.
78. People v. Morata, supra at 269.
79. People v. Belga, G.R. No. 129769, January 19, 2001, 349 SCRA 678.
80. Id. at 683-684.
81. See People v. Reñola, 367 Phil. 415 (1999).
82. Exhibit "K," records, p. 156.
83. People v. Jamiro, 344 Phil. 700, 720 (1997).
84. Guevarra v. Almodovar, G.R. No. 75256, January 26, 1989, 169 SCRA 476.
85. People v. Doqueña, supra at 583.
86. TSN, November 21, 2001, p. 56.
87. Supra note 76.
88. Id. at 582.

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 Endnotes

1 (Popup - Popup)
1. Penned by Associate Justice Bienvenido L. Reyes, with Associate Justices Conrado
M. Vasquez, Jr. and Hakim S. Abdulwahid, concurring.

2 (Popup - Popup)
2. Penned by Judge Lilia C. Lopez.

3 (Popup - Popup)
3. Records, p. 2.

4 (Popup - Popup)
4. TSN, November 18, 2000, p. 2.

5 (Popup - Popup)
5. Exhibit "H-2," records, p. 153.

6 (Popup - Popup)
6. TSN, October 24, 2002, p. 4.

7 (Popup - Popup)
7. TSN, November 4, 2002, p. 11.

8 (Popup - Popup)
8. Id.

9 (Popup - Popup)
9. November 11, 2002, p. 4.
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 10 (Popup - Popup)
10. Exhibits "M" and "5," records, pp. 158-159.

11 (Popup - Popup)
11. TSN, November 4, 2002, pp. 11-12.

12 (Popup - Popup)
12. Id. at 19.

13 (Popup - Popup)
13. Id. at 18.

14 (Popup - Popup)
14. Id. at 12 and 20.

15 (Popup - Popup)
15. Id. at 20.

16 (Popup - Popup)
16. Id. at 13.

17 (Popup - Popup)
17. Id. at 13-17.

18 (Popup - Popup)
18. Id. at 17.

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 19 (Popup - Popup)
19. Id. at 18.

20 (Popup - Popup)
20. TSN, November 6, 2002, p. 6.

21 (Popup - Popup)
21. TSN, November 11, 2001, p. 5.

22 (Popup - Popup)
22. Id. at 6-7.

23 (Popup - Popup)
23. TSN, November 13, 2002, p. 10.

24 (Popup - Popup)
24. TSN, November 11, 2002, p. 6.

25 (Popup - Popup)
25. Id. at 7.

26 (Popup - Popup)
26. Exhibit "K," records, p. 156.

27 (Popup - Popup)
27. TSN, November 18, 2002, pp. 4-5.

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 28 (Popup - Popup)
28. Id. at 12-13.

29 (Popup - Popup)
29. Id. at 5-6.

30 (Popup - Popup)
30. TSN, October 30, 2002, p. 7.

31 (Popup - Popup)
31. Exhibit "B," records, p. 147.

32 (Popup - Popup)
32. TSN, October 30, 2002, p. 10.

33 (Popup - Popup)
33. Id. at 15.

34 (Popup - Popup)
34. Exhibit "G," records, p. 152.

35 (Popup - Popup)
35. TSN, October 30, 2002, p. 21.

36 (Popup - Popup)
36. Exhibit "B," records, p. 147.

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 37 (Popup - Popup)
37. TSN, October 30, 2002, p. 21.

38 (Popup - Popup)
38. TSN, November 19, 2002, pp. 2-5.

39 (Popup - Popup)
39. TSN, November 21, 2002, p. 18.

40 (Popup - Popup)
40. Id. at 22.

41 (Popup - Popup)
41. Id. at 43.

42 (Popup - Popup)
42. Id. at 54-55.

43 (Popup - Popup)
43. Exhibit "12," records, p. 91.

44 (Popup - Popup)
44. TSN, November 21, 2002, p. 45.

45 (Popup - Popup)
45. Id. at 48.

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 46 (Popup - Popup)
46. Id. at 46-47.

47 (Popup - Popup)
47. Id. at 70.

48 (Popup - Popup)
48. Id. at 72.

49 (Popup - Popup)
49. Id. at 49.

50 (Popup - Popup)
50. Records, p. 52; TSN, October 29, 2002, pp. 6-7.

51 (Popup - Popup)
51. Exhibit "I," records, p. 154.

52 (Popup - Popup)
52. TSN, November 21, 2002, pp. 8-9.

53 (Popup - Popup)
53. Records, p. 269.

54 (Popup - Popup)
54. Id.

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 55 (Popup - Popup)
55. CA rollo, p. 53.

56 (Popup - Popup)
56. Id. at 135.

57 (Popup - Popup)
57. Id. at 138-156.

58 (Popup - Popup)
58. Id. at 191-193.

59 (Popup - Popup)
59. Id. at 192-193.

60 (Popup - Popup)
60. Rollo, pp. 14-15.

61 (Popup - Popup)
61. Rollo, pp. 128-131.

62 (Popup - Popup)
62. Records, p. 1.

63 (Popup - Popup)
63. Id. at 13-17.

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 64 (Popup - Popup)
64. See People v. Arce, Jr., 417 Phil. 18 (2001).

65 (Popup - Popup)
65. G.R. No. 140011-16, March 12, 2001, 354 SCRA 259, 275.

66 (Popup - Popup)
66. People v. Rafales, G.R. No. 133477, January 21, 2000, 323 SCRA 13, 27.

67 (Popup - Popup)
67. See People v. Morata, supra.

68 (Popup - Popup)
68. TSN, November 4, 2002, pp. 11-13.

69 (Popup - Popup)
69. Id. at 20.

70 (Popup - Popup)
70. TSN, November 6, 2002, pp. 2-3.

71 (Popup - Popup)
71. People v. Osing, G.R. No. 138959, January 16, 2001, 349 SCRA 310, 318.

72 (Popup - Popup)
72. TSN, October 30, 2002, pp. 22-23.

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 73 (Popup - Popup)
73. TSN, October 30, 2002, pp. 13-14.

74 (Popup - Popup)
74. TSN, November 21, 2002, p. 23.

75 (Popup - Popup)
75. See People v. Pardillo, Jr., 346 Phil. 971, 984 (1997).

76 (Popup - Popup)
76. People v. Doqueña, 68 Phil. 580, 583 (1939).

77 (Popup - Popup)
77. TSN, November 21, 2002, pp. 71-72.

78 (Popup - Popup)
78. People v. Morata, supra at 269.

79 (Popup - Popup)
79. People v. Belga, G.R. No. 129769, January 19, 2001, 349 SCRA 678.

80 (Popup - Popup)
80. Id. at 683-684.

81 (Popup - Popup)
81. See People v. Reñola, 367 Phil. 415 (1999).

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 82 (Popup - Popup)
82. Exhibit "K," records, p. 156.

83 (Popup - Popup)
83. People v. Jamiro, 344 Phil. 700, 720 (1997).

84 (Popup - Popup)
84. Guevarra v. Almodovar, G.R. No. 75256, January 26, 1989, 169 SCRA 476.

85 (Popup - Popup)
85. People v. Doqueña, supra at 583.

86 (Popup - Popup)
86. TSN, November 21, 2001, p. 56.

87 (Popup - Popup)
87. Supra note 76.

88 (Popup - Popup)
88. Id. at 582.

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