DAVIDE, JR., C.J.: Percuriam

In its consolidated decision1 [Per Judge (now Court of Appeals Associate Justice) Mercedes Gozo-Dadole, Original Record (OR), 96-125; Rollo, 73-101.] of 29 October 1997 in Criminal Case No. DU-5228 and Criminal Case No. DU-5229, the Regional Trial Court of Mandaue City, Branch 28, found accused-appellant Antonio Ferolino alias Francisco Ferolino (hereafter ANTONIO) guilty of rape, and sentenced him to suffer the penalty of death in each case and to pay the victim Ferlyn Dumaguit (hereafter FERLYN), his eight-year old niece, the sum of P50,000 as indemnity, P50,000 as moral and exemplary damages, as well as the costs of suit.

On the basis of FERLYN's sworn statement dated 31 July 1995, and the affidavit of her mother Lorelina, both of which were executed before the Commission on Human Rights (CHR), Region VII, Cebu City, a complaint for "Child Abuse-Rape under R.A. 7610" was filed against ANTONIO. After appropriate proceedings, two informations for rape dated 31 October 1995, were filed with the court below and docketed as Criminal Case No. DU-5228 and Criminal Case No. DU- 5229. The accusatory portions in both cases are similarly worded, thus:

The prosecution established the following facts:

Even before she was born on 14 December 1986,3 [Per Certificate of Live Birth, Exh. "A," OR, 49.] FERLYN's family had already been living at the house of ANTONIO at Tipolo, Mandaue City. She grew up there with her mother Lorelina; her uncles, Emelito and Ferlo, and their families; and ANTONIO, whom she fondly called "Papa Tonio," his wife Fe, the sister of Lorelina's deceased husband, Femando, and their daughter Fely. FERLYN's family moved out from ANTONIO's house sometime in May 1995, after the occurrence of the incidents subject of these cases.4 [TSN, 29 May 1996, 5; 2 July 1996, 2-3; 2 September 1996, 4.] Exsm

Sometime in April 1995, FERLYN was taken by ANTONIO to a deserted building near his house on the pretext that FERLYN would pluck his gray hair. But once his niece entered, ANTONIO closed the door and immediately removed her underwear while she was standing. He then took off his own pants and made FERLYN lean on the wall of the building. ANTONIO parted her knees, thereby drawing her legs apart, and inserted his penis into her vagina.5 [TSN, 2 September 1996, 5, 11, 15-16.] In so doing, ANTONIO made a pushing motion which FERLYN demonstrated by clasping her hands and moving them forward. Due to the pain she felt, FERLYN shouted "Nay," for which she was instantly admonished by ANTONIO. The latter, however, told her that no one could hear her. He threatened to kill all the members of her family if she would report the incident to anybody. His dastardly deed accomplished, ANTONIO urinated, giving FERLYN the chance to flee. As may be expected of a girl her age, FERLYN did not disclose the incident to her mother for fear that her Papa Tonio might harm the members of her family.6 [Id., 6.]

The next day, using the same modus operandi, ANTONIO sought a repeat of the previous day’s activity. FERLYN initially declined but her mother told her to go with her Papa Tonio and pluck his gray hair inasmuch as they were living in his house. Inside the building, ANTONIO took off her panty and his own short pants. He forced FERLYN to lie down on a bench, then immediately he went on top of her. Once more, the young girl felt pain in her vagina and body. He squeezed his penis twice, ejaculated, then stood up. At this point, his daughter Fely knocked on the door of the building. When he opened the door, FERLYN saw an opportunity to ran back to the house. Again, remembering ANTONIO's threats, FERLYN remained silent.7 [Id., 6-8.]

After one incident in April 1995, where ANTONIO was boxed by her Uncle Emelito for touching his wife Ana's private part, FERLYN finally recounted to her mother what ANTONIO had done to her. She told her mother, "Nay Papa Tonio is foolish." When asked why she replied, "Because Papa Tonio took off my panty and did like that to me with is penis." She demonstrated this by joining her hands and making a pushing motion.8 [Id., 8.] FERLYN added that ANTONIO "even did this foolish thing to me twice, Nay, because the following day, after the first time, he again did it."9 [TSN, 29 May 1996, 8.] FERLYN explained that she did not immediately confide to her mother because ANTONIO had threatened to kill all of them. When asked when the incident occurred, she said (they, happened when she was "feeling very weak." Lorelina Dumaguit recalled that it was also in April 1995 when she brought FERLYN to a doctor because the latter felt weak and sick. FERLYN then complained of pain in her private part. When asked about it, she said she did not know. Kylex

Thus, Lorelina and FERLYN reported the matter to the Barangay Captain of Tipolo. During confrontation, Fe Ferolino said that because Lorelina had been a widow for a long time, her husband should have had intercourse with Lorelina instead of with FERLYN. From there, Lorelina and FERLYN proceeded to the local office of the Department of Social Welfare and Development (DSWD).10 [TSN, 29 May 1996, 8-9; 2 September 1996, 8.] The DSWD referred FERLYN to the Don Vicente Sotto Medical Center in Cebu City, where she was examined on 26 July 1996 by Dr. Maria Louisa Baladjay-Catipon.11 [TSN, 8 August 1996, 7.] The latter's findings were incorporated in the Medical Certificate12 [Exhibit "B," OR, 51.] issued on the same date, viz.:

After that, Lorelina and FERLYN proceeded to the CHR Office in Cebu City, where their sworn statements13 [Exhibits "C" and "D," OR, 53-55.] were taken. Thereupon, on 28 August 1995, a complaint subscribed by FERLYN was filed with the Office of the City Prosecutor.14 [Exhibit "E," OR, 56.] Kycalr

For his defense, ANTONIO denied ever sexually molesting FERLYN. He testified that in 1995 he was a security guard at a warehouse leased to a certain Andrew Amadora. Alleging ill motive on the part of FERLYN and her family, he said Lorelina's son sought his help in gaining employment at the warehouse, but he could not do anything because there was no vacancy.15 [TSN, 28 April 1997, 3-5.] ANTONIO also declared that on 19 July 1995, he was mauled by the Dumaguits because he allegedly touched the private part of Ferlo Dumaguit's wife. Consequently, he filed a complaint for physical injuries against the Dumaguits. During the barangay conciliation proceedings in the physical injuries case, however, the Dumaguits intimated that should ANTONIO refuse to withdraw his complaint, they would charge him for rape.16 [TSN, 28 April 1997, 5; TSN, 26 May 1997, 3-5.] Procopio Villanueva, Barangay Captain of Tipolo, Mandaue City, corroborated this allegation.17 [TSN, 17 March 1997, 3-7.]

Fe Ferolino further supported her husband's testimony regarding his employment as well as the possible reason for his indictment, that is, the mauling incident which was amicably settled at the barangay level after the Dumaguits asked for ANTONIO's forgiveness.18 [TSN, 7 October 1996, 10-11.] She added that, contrary to the prosecution's statement of facts, Lorelina’s family was not living with them in April 1995.19 [Id., 3-6, 19-20, 24.] Calrky

For her part, ANTONIO's daughter Fely denied that she knocked at the door of the warehouse where the alleged incident took place in April 1995.

Francisca Bustamante, ANTONIO's neighbor, co-member of the Tipolo New Society Livelihood Organization, and co-worker at Andrew Amadora's warehouse, testified that during the period of her employment the warehouse was always occupied. She admitted, however, that during daytime she would sometimes bring her work home or leave the workplace for lunch.20 [TSN, 24 June 1997, 3-6; 11-15.]

The trial court was fully convinced of the criminal culpability of ANTONIO. It ruled that the gravamen of the offense of rape, which is having sexual intercourse with a woman against her will, was fully established. FERLYN testified that when she was sexually attacked, no full penetration occurred; yet she added that the penis of ANTONIO touched the labia of her vagina. The positive declaration of the victim on this matter is sufficient to support a judgment of conviction since "a slight penetration of the labia consummates the crime of rape."21 [Citing People v. Oscar, 48 Phil. 527 and People v. Hernandez, 49 Phil. 890.]

Conversely, the trial court refused to give credence to ANTONIO's denial and the self-serving testimonies of his witnesses, and ruled that the alleged ill motive for the filing of the rape charge was not sufficiently proven.

The trial court considered against ANTONIO the twin qualifying circumstances of age (FERLYN was only eight years old at the time of the incident) and relationship (ANTONIO's wife Fe is the sister of FERLYN's father Fernando, making him FERLYN's uncle by affinity). The presence of these special qualifying circumstances, duly alleged in the information, rendered mandatory the imposition of the death penalty pursuant to Article 335 of the Revised Penal Code, as amended by R.A. No. 7659.22 ["An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the Revised Penal Code as Amended, Other Special Laws, and for Other Purposes," which took effect on 31 December 1993 following our ruling in People v. Simon, 234 SCRA 555 (1994)]

Thus, in its decision23 [Supra, note 1.] of 29 October 1997, the trial court decreed as follows: Mesm

The judgment was brought to us for automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Section 22 of R.A. No. 7659. In his Appellant's Brief, ANTONIO assigns this lone error:

ANTONIO alleges that the two informations in Criminal Case No. DU-5228 and Criminal Case No. DU-5229 are void since they failed to state the approximate time of the commission of the offense, as set forth in Section 6, Rule 110 of the Rules of Court. Such failure was a violation of the rule that in every criminal prosecution of rape "each sexual intercourse must be proved to have been committed at a precise date and time." The allegations in the informations only stated that ANTONIO committed rape "sometime in April 1995." He claims such allegations are too "indefinite" and, thus, deprived him of his right to be informed of the nature and cause of accusation against him so as to afford him an adequate opportunity to prepare for his defense.24 [Citing U.S. v. Dichao, 27 Phil. 421.] ANTONIO concludes that the two informations are fatally defective, and for this reason, the challenged decision of 29 October 1997 should be set aside and anew one entered acquitting him.

These arguments have no merit.

Under Section 11, Rule 110 of the Rules of Court, it is not necessary for the information to allege the date and time of the commission of the crime with precision and exactitude, unless, of course, the time is an essential ingredient of the offense. Thus,

The legal implications of this provision has been explained in People v. Lucas,25 [232 SCRA 537, 547 (1994). See also People v. Losano, G.R. No. 127122, 20 July 1999; People v. Teves, G.R. No. 128839, 20 July 1999.] where we reiterated the early ruling in U.S. v. Arcos26 [11 Phil. 555, 561-562.] that:

Where time or place or any other fact alleged is not an essential element of the crime charged, conviction may be had on proof of the commission of the crime, even if it appear(s) that the crime was not committed at the precise time or place alleged, or if the proof fails to sustain the existence of some immaterial fact set out in the complaint, providing it appears that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information within the period of the statute of limitations, and at a place within the jurisdiction of the court. Slx

We do not agree with ANTONIO's contention that the two informations under which he was charged are invalid since they failed to allege the exact date and time of the commission of the crime. FERLYN, who was only nine (9) years old at the time she testified, explained that her harrowing experience occurred in 1995, although she cannot remember what particular month.27 [TSN, 2 September 1996, 12.] Her mother, however, shed light on this uncertainty. Lorelina testified that FERLYN complained of some pain in her private part sometime in April of 1995.28 [TSN, 29 May 1996, 8.] This was when FERLYN divulged to her mother what her Papa Tonio had done to her.29 [TSN, 29 May 1996, 6-8.]

After a rigorous study of the records of this case, we find nothing on record that would justify a reversal of ANTONIO's conviction.

We cannot simply disregard the direct and spontaneous testimony of FERLYN, who was merely nine (9) years old at the time she testified. It is unbelievable for a girl of such a tender age, unfamiliar with the ways of the world, to fabricate such sordid story of defloration, a traumatic experience with repercussions beyond relief and irreversibly lasting in its effects. FERLYN survived an intensive cross-examination. Her narration revealed each and every relevant detail of the incidents. She was taken to an empty warehouse, which was ANTONIO's modus operandi to isolate them from prying eyes. He removed her underwear. She was made do lean on the wall and spread her legs to facilitate his intrusion. She felt the pain when he entered her, as well as the wetness in his private parts. We believe this declaration sufficiently establishes beyond moral doubt the commission by ANTONIO of the crime of rape against FERLYN in the month of April 1995, thus:

x-x-x

Let us now consider the imposable penalty. The trial court imposed the death penalty because it considered the special qualifying circumstances of relationship of ANTONIO to FERLYN, and the latter's age. Both informations alleged that ANTONIO "Willfully, unlawfully and feloniously through force and intimidation commit sexual abuse and have sexual intercourse with his niece, an 8 year old girl, FERLYN DUMAGUIT." The prosecution was able to prove that at the time she was raped FERLYN was only eight years old, having been born on 14 December 1986 as evidenced by the certificate of live birth.31 [Exhibit "A," OR, 49.] The prosecution likewise proved that ANTONIO's wife Fe is FERLYN's aunt, being the sister of FERLYN's father Femando. Therefore, Fe is FERLYN's relative by consanguinity within the third civil degree, while ANTONIO is FERLYN's relative by affinity within the third civil degree.,

The seventh paragraph of Article 35 of the Revised Penal Code, as amended by Section 7 of R.A. No. 7659 provides: Kortex

These seven attendant circumstances, given that they alter the nature of the crime of rape and thus increase the degree of the penalty, are in the nature of qualifying circumstances. Plainly, these attendant circumstances added by R.A. No. 7659 are not ordinary aggravating circumstances, which merely increase the period of the penalty. These are special qualifying circumstances which must be specifically pleaded or alleged with certainty in the information; otherwise, the death penalty cannot be imposed.32 [People v. Ramos, G.R. No. 129439, 25 September 1998, 296 SCRA 559; People v. Olao, G.R. No. 129529, 29 September 1998, 296 SCRA 658; People v. Maglente, G.R. No. 124559-66, 30 April 1999.]

In this case the allegation that FERLYN is ANTONIO's niece is not specific enough to satisfy the special qualifying circumstances of relationship. If the offender is merely a relation - not a parent, ascendant, step-parent, or guardian or common law spouse of the mother of the victim - it must be alleged in the information that he is "a relative by consanguinity or affinity [as the case may be] within the third civil degree. That relationship by consanguinity or affinity was not alleged in the informations in these cases. Even if it was, it was still necessary to further allege that such relationship was within the third civil degree. Sclaw

Consequently, ANTONIO can only be held liable for simple rape in each case for the rape of a child under twelve years of age. The penalty therefor under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, is reclusion perpetua.

The award of P50,000 as indemnity in each case is in order. Moral damages and exemplary damages should be separately determined. Conformably with current case law, moral damages of P50,000 may be awarded in each case without need of allegation and proof.33 [People v. Prades, G.R. No. 127569, 30 July 1998, 293 SCRA 411.] Exemplary damages in the amount of P25,000 in each case is also in order to deter the commission by others of similar dastardly deeds.34 [People v. Dizon, G.R. No. 128889, 20 August 1999, citing Article 2229, Civil Code.]

WHEREFORE, the decision of the Regional Trial Court of Mandaue City, Branch 28, in Criminal Case No. DU-5228 and Criminal Case No. DU-5229, finding in each case accused-appellant ANTONIO FEROLINO a.k.a. Francisco Ferolino, guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer the penalty of death is hereby MODIFIED. As MODIFIED, accused-appellant ANTONIO FEROLINO, a.k.a. Francisco Ferolino, is found in each case guilty beyond reasonable doubt, as principal, of the crime of simple rape, defined and penalized in Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, and is hereby sentenced in each case to suffer the penalty of reclusion perpetua, with all its accessory penalties and to pay the offended party, FERLYN DUMAGUIT the sum of P50,000 as indemnity, P50,000 as moral damages, and P25,000 as exemplary damages.

Costs against accused-appellant.

Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. Slxmis