Before this Court for automatic review is the Decision1 [In Criminal Case No. 95-12-587. Penned by Acting Presiding Judge Roberto A. Navidad.] dated 8 February 1997, of the Regional Trial Court, Eighth Judicial Region, Branch 7, Tacloban City, finding accused-appellant Liberato "Renato" Mendiona guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer the supreme penalty of death and to pay the complainant, Maricel Capongcol, the amount of fifty thousand pesos (P50,000.00) as moral damages.

The Information against accused-appellant and Tirso Cinco reads:

Cinco remained at large. On March 8, 1996, accused-appellant pleaded not guilty.3 [Certificate of Arraignment, Rollo, p. 12.]

The victim Maricel Capongcol took the witness stand. She testified that she is nineteen (19) years old, single, a laundry woman and a resident of Barangay Batug, Dulag, Leyte. She knew accused-appellant and Cinco. The latter is her relative. On 7 October 1995, at about 6 o'clock in the evening, she was alone in their house. Her mother happened to be in Tacloban City. From the window, she saw accused-appellant and Tirso Cinco by the fence. The two broke into house through the window by kicking its shutter. Once inside, they threatened to kill her. Cinco had a bolo known in their dialect as "pisao." The two removed her dress, panty, sando and shorts pants. She shouted three times in protest. Accused-appellant covered her mouth with his right hand to muffle her voice and threatened her with the "pisao" which he got from Cinco.4 [TSN, Maricel Capongcol, April 17, 1996, pp. 14-17.] Accused-appellant laid her on the floor and mounted her while Cinco held her thighs. Accused-appellant was able to deflower her. Feeling pain in her bleeding private part, she shouted calling her mother. He also kissed her cheeks, lips and private part and touched her breasts. He penetrated her two times. After satisfying his lust, he threatened to kill her should she mention the incident to his uncle, Matias Teston.5 [TSN, Maricel Capongcol, April 16, 1996, pp. 2-13.]

Her cousin Felix Naing and Virgilio Malte heard her screams and came. Accused-appellant and Cinco avoided them by jumping out through the window. Maricel's cousins found her crying as she put on her dress. She did not inform them of her violation for fear that they might tell her mother and uncle who, in turn, might punish her. Nonetheless, on 22 October 1995, she revealed to her mother her unfortunate fate.6 [Id.,. pp. 9, 13-14.]

Felix Naing corroborated the testimony of Maricel. He testified that on 7 October 1995, at about 6 o'clock in the evening, he and Virgilio Malte were on their way to deliver a carabao to Sergio Bongcaran. They heard a woman's scream coming from the house of Damiana Capongcol. They alighted from the carabao and tethered it to a coconut tree. With their flashlights on, they proceeded to the said house. At a distance of ten (10) to fifteen (15) meters, they saw accused-appellant and Cinco jump out of the window of Damiana's house. Felix noticed that accused-appellant was holding his unzipped pants with his left hand while his right hand was holding the shirt placed on his right shoulder. From about five (5) to six (6) meters, he saw Maricel standing by the window crying and covering her breasts with a shirt. He suspected that the two did something wrong to complainant but he did not inquire further.7 [TSN, Felix Naing, August 13, 1996, pp. 2-10.]

In defense, accused-appellant declared that on the date and time of the incident, he spent the night in his grandmother's house in Barangay Del Pilar, about one-half kilometer away from Barangay Batug. He came from the birthday party of the daughter of the barangay captain of Barangay Batug where he joined the tuba drinking session from 4 o'clock to 5 o'clock in the afternoon. Allegedly, he stayed in his grandmother's house until the following morning.8 [TSN, Liberato Mendiona, September 10, 1996, pp. 2-9.]

The trial court gave credence to the testimonies of the prosecution witnesses and rejected accused-appellant's alibi. He was convicted of rape in a Decision, the dispositive portion of which reads:

Before this Court, appellant maintains that his conviction for rape is erroneous. As first ground, he assails the credibility of Maricel. He states that he was initially charged with the lesser crime of acts of lasciviousness and Maricel testified that on her own, she would have maintained said charge.10 [TSN, April 17, 1996, p. 48.] A careful examination, however, of the complete testimony of Maricel - direct, cross and redirect - will reveal that she clearly impressed on the trial court that she was raped by the accused-appellant, viz:

"Acts of lasciviousness" is a technical term whose meaning and nuances could not have been appreciated by Maricel. We note that the trial court described Maricel in its Decisions as "very shy, afraid and secretive 19-year old with slow comprehension and behave like a 7 – year old xxx."12 [Rollo, p. 28.] A review of the records will also show that upon re-investigation the charge of rape was filed against the accused-appellant by the public prosecutor based on the medical report which showed that Maricel has healed hymenal lacerations and her revelation that it was her first time to have a sexual encounter with a man.

The further charge of accused-appellant that Maricel was merely instigated by her relatives to file the case at bar is belied by her testimony where she categorically stated that she herself informed her mother of her unfortunate experience, viz:

As second ground, accused-appellant contends that he should not have been sentenced to death because the crime he committed has "less horrifying features" than the heinous crimes mentioned in R.A. No. 7659.14 [Rollo, p. 65.]

The contention is untenable.

The crime of rape is defined and penalized under Article 335 of the Revised Penal Code as follows:

In the instant case, the prosecution established that appellant and Cinco succeeded in defiling Maricel with the use of a deadly weapon, i.e., "pisao." Accordingly, the range of penalty imposable on appellant is composed of two indivisible penalties, i.e., reclusion perpetua to death. Following Article 63 (1)15 [Article 63. Rules for the application of indivisible penalties. – x x x In all case in which the law prescribes a penalty composed of two indivisible penalties, the following rules shall be observed in the application thereof:

x x x.] of the same Code, which provides the rules for the application of indivisible penalties, appellant was correctly meted the supreme penalty of death since the aggravating circumstances of dwelling and unlawful entry attended the commission of the rape. The attendance of these aggravating circumstances is not contested by the accused-appellant.

On a final note, we correct the trial court’s erroneous classification of the award of P50,000.00 as moral damages. In People v. Prades,16 [People of the Philippines v. Senen Prades, 293 SCRA 411 (1998)] we explained that "x x x the award authorized by criminal law as civil indemnity ex delicto for the offended party x x x is mandatory upon the finding of the fact of rape; it is distinct from and should not be denominated as moral damages which are based on different jural foundations and assessed by the court in the exercise of sound discretion." Further, our more recent rulings hold that the indemnification for the victim shall be in the increased amount of P75,000.00 if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by law. Applying the foregoing rulings, the civil indemnity to be awarded to the complainant should be seventy five thousand pesos (P75,000.00).

The People having established the guilt of accused-appellant beyond reasonable doubt, his conviction and the death penalty imposed by the trial court must be affirmed. Withal, four (4) members of this Court maintain their position that Republic Act No. 7659 insofar as it prescribes the death penalty is unconstitutional; but they nevertheless submit to the ruling of the majority that the law is constitutional and that the death penalty should be imposed in this case.

IN VIEW WHEREOF, the impugned Decision of the of the Regional Trial Court of Tacloban City, Branch 7, in Criminal Case No. 95-12-587 finding the accused-appellant guilty beyond reasonable doubt of rape as defined by Article 335 of the Revised Penal Code and sentencing him to death is AFFIRMED with the MODIFICATION that the award of civil indemnity to the complainant, Maricel Capongcol, is increased to seventy five thousand pesos (P75,000.00) conformably with existing jurisprudence.

Let the records of this case be forwarded to the Office of the President upon finality of this decision for possible exercise of executive clemency in accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code.

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