ROLANDO ATIENZA Y BAUTISTA was charged before the Regional Trial Court of San Jose, Camarines Sur, with having raped through force and intimidation one Maria Theresa Obias y Rañola, a 13-year old minor. He was thereafter sentenced to reclusion perpetua and ordered to pay the private offended party P50,000.00 as civil indemnity and to pay the costs.1 [Decision penned by Judge Alfredo A. Cabral, RTC-Br. 30, San Jose, Camarines Sur; Rollo, pp. 17-29.] Supremex

These are the facts on which the Decision was based: Complaining witness Maria Theresa Obias was alone in the room which her family was renting at Rizal Street, Goa, Camarines Sur, in the afternoon of 22 September 1996. At around 3:00 o'clock, 35-year old Rolando Atienza, her mother's godson and a former neighbor, arrived inquiring about his Ninang Feling. Ninang Feling is Maria Theresa's mother, Felicisima Obias, who stood as principal sponsor in Rolando's wedding. Upon learning that she (Maria Theresa) was alone, Rolando closed the door and windows, dragged her towards her mother's bed and forcibly tried to remove her shorts, but she cried, "Habo ko!" (I don't want!). But the accused succeeded despite her resistance. He then laid on top of her and inserted his penis into her vagina. All the while Maria Theresa was pushing him away saying, "Habo ko, habo ko!"2 [TSN, 17 June 1997, pp. 8-9.] After satisfying his lust, the accused gave Maria Theresa two (2) five-peso bills3 [Exhs. "D" and "E;" Original Records, pp. 60-61.] with a threat however before he left that he would harm her family should she reveal the incident to her mother.4 [TSN, 17 June 1997, p. 12.] The offended party also testified that Rolando Atienza had previously kissed and embraced her on three (3) occasions when her family was still staying in Panday.5 [TSN, 17 June 1997, p. 20.]

Felicisima Obias, mother of Maria Theresa, narrated that at around 5:00 o'clock in the afternoon of 22 September 1996, after arriving home from church, she noticed that her youngest daughter, Maria Theresa, was nervous. While dressing her up to go to church with her father and a sister, Felicisima noticed two (2) five-peso bills tucked in Maria Theresa's short pants. Since she was not in the habit of giving her daughter that much money Felicisima asked where it came from. When Maria Theresa answered tearfully that the money came from Rolando Atienza, Felicisima became apprehensive and questioned her further. It was at that point when Maria Theresa revealed what had happened to her.

After the physical examination conducted by Dr. Diosdado Fuentebella, the Rural Health Physician of Goa, Camarines Sur, Felicisima learned further that Maria Theresa was no longer a virgin even before the incident as Rolando had sexually abused her previously.6 [TSN, 16 June 1997, pp. 13-23.]

Dr. Fuentebella physically examined private complainant the day after the incident.7 [See Exh. "B;" Original Records, p. 7; also TSN, 17 June 1997, p. 14.] He opined that she lost her physical virginity even before 22 September 1996 but that her recent sexual contact was evidenced by spermatozoa found upon microscopic examination of her vaginal secretion.8 [Exh. "B;" id., p. 7.] On cross-examination, Dr. Fuentebella conceded that there was no sign of physical injury on the body of private complainant although he clarified on redirect examination that it was not at all unusual in cases where the woman already had healed hymenal lacerations as in the case of Maria Theresa.9 [TSN, 16 June 1997, pp. 9-10.] Esâ msc

Dr. Chona Belmonte, a psychiatrist from the Bicol Regional Hospital and admitted by the trial court as a medical expert,10 [TSN, 29 April 1997, p. 8.] testified that she conducted a psychiatric examination on private complainant and found her to be suffering from mild mental retardation. Specifically, Dr. Belmonte said that Maria Theresa, in addition to being poor in abstract reasoning and general knowledge, was quite weak in critical judgment; that although private complainant was already thirteen (13) years old at the time her intelligence quotient (IQ) was only sixty-three (63) thus making her mental age equivalent only to that of an eight (8)-year old child.11 [TSN, 29 April 1997, pp. 10-11.]

The defense on the other hand presented only the accused Rolando Atienza who admitted that he went to his Ninang Feling's house in the early afternoon of 22 September 1996. However he claimed that he did so only to collect on a debt. When he learned that his Ninang Feling was in church he waited for her by lying on the sofa and looking over some pictures in an album. He denied raping private complainant and claimed that he left at about 3:00 o'clock in the afternoon after he got tired of waiting for his Ninang Feling. To rebut the testimony that private complainant had the mental capacity of an eight (8)-year old child, the defense presented private complainant's Elementary School Permanent Record or DECS Form No. 137-A12 [Exh. "1" for defense.] showing that the latter obtained passing grades from Grades I to VI.

On 7 October 1997 judgment was rendered finding the accused guilty of rape. The trial court found the testimony of private complainant more credible than the denial of the accused after noting the simple manner by which private complainant testified, with no sign of shuffling or falsehood. Moreover, in addition to finding that rape was indeed committed through force the trial court concluded that the accused would still be liable for rape, even if no such force was exerted, considering the mental age of private complainant which was that of an eight (8)-year old child. Accordingly, the he was sentenced to suffer the penalty of reclusion perpetua and ordered to pay private complainant P50,000.00 as civil indemnity, plus the costs.13 [Penned by Judge Alfredo A. Cabral, RTC-Br. 30, San Jose, Camarines Sur; Rollo, pp. 17-29.] EsmmÓ is

Accused-appellant contends in this appeal that the trial court erred in finding him guilty of rape as defined in par. (2), Art. 33514 [Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force or intimidation; 2. When the woman is deprived of reason or otherwise unconscious; and x x x x.] of the Revised Penal Code, providing for a mode of commission different from that charged in the Information, i.e., while the Information charged him with rape committed through force and intimidation as defined in par. (1), Art. 335, he was nevertheless eventually convicted of rape under par. (2) thereof, i.e., rape of a woman who was deprived of reason, including those with the mental capacity of a child below twelve (12) years old.15 [People v. Sunga, No. L-45083, 24 June 1985, 137 SCRA 130, 136; People v. Gallano, G.R. No. 51565, 23 October 1981, 108 SCRA 405, 413.]

Accused-appellant strongly argues that he was deprived of his constitutional right to be informed of the nature and cause of the accusation against him, hence, he is entitled to acquittal.

We find no merit in accused-appellant's contention. First, the trial court did not find him guilty solely of rape committed under par. (2), Art. 335, of the Revised Penal Code.16 [See Note 14.] On the contrary, a plain reading of the appealed Decision readily shows that the primary basis of his conviction was the finding that he had carnal knowledge of the thirteen (13)-year old private complainant through force and intimidation as properly charged in the Information. Thus the court a quo said -

Secondly, even though private complainant's subnormal mental capacity was not alleged in the Information, hence, conviction under par. (2), Art. 335, of the Revised Penal Code would normally be violative of accused-appellant's constitutional right to be informed of the nature and cause of the accusation against him,17 [People v. Pailano, G.R. No. 43602, 31 January 1989, 169 SCRA 649, 653.] it cannot be denied however that he did not object to the presentation of Dr. Chona Belmonte who was precisely called by the prosecution as its first witness to testify on private complainant's subnormal mental capacity, that is, although the latter was already thirteen (13) years old at the time of the incident, her mental capacity was equivalent only to that of an eight (8)-year old child. While defense counsel did object to Dr. Belmonte's Psychiatric Evaluation Report18 [Exh. "A;" Records, pp. 48-49.] during the prosecution's formal offer of documentary evidence, he did so only on the ground that private complainant did not appear to him to be feeble-minded during cross-examination.19 [TSN, 1 July 1997, p. 16; id., p. 137.] Thus, instead of objecting outright to the aforementioned prosecution evidence on the ground that private complainant's alleged subnormal mental capacity was not properly alleged in the Information, the defense in fact waived this procedural infirmity20 [People v. Abiera, G.R. No. 93947, 21 May 1993, 222 SCRA 378, 381-382 clarifying People v. Pailano (169 SCRA 649)] by presenting evidence of its own to prove the contrary, that is, that private complainant was normal as shown by her Elementary School Permanent Record or DECS Form No. 137-A formally offered as Exh. "1" for the defense. In People v. Abiera21 [Ibid.] the Court passing upon the very same contention raised by herein accused-appellant ruled -

Finally, even assuming arguendo that accused-appellant's conviction under par. (2) of Art. 335 of the Revised Penal Code should be set aside, he is nevertheless still liable for rape committed through force and intimidation since his guilt thereof, as properly charged in the Information, has been proved beyond reasonable doubt.22 [People v. Bugtong, G.R. No. 75853, 31 January 1989, 169 SCRA 797, 806.]

The thirteen (13)-year old private complainant tearfully recounted on the witness stand how accused-appellant forcibly dragged her to her mother's bed upon learning that she was alone, undressed her, sexually abused her despite her resistance - Habo ko! Habo ko! (I don't want! I don't want!)23 [TSN, 17 June 1997, p. 11.] - and that after having succeeded in his evil design, threatened her and her family with harm should she reveal the incident to her mother. justice

It is well-settled that testimonies of victims who are young and of tender age deserve full credence24 [People v. Ibalang, G.R. No. 109783, 24 February 1998, 286 SCRA 387, 399-400.] and should not be so easily dismissed as a mere fabrication.25 [People v. Molas, G.R. Nos. 88006-08, 2 March 1998, 286 SCRA 684, 690.] No woman, much less a child, would concoct a story of defloration, allow an examination of her private parts and subject herself to public trial or ridicule if she has not, in fact, been a victim of rape and impassioned to seek justice for the wrong done to her being.26 [People v. Bersabe, G. R. No. 122768, 27 April 1998, 289 SCRA 685, 695-696; People v. Antipona, G. R. No. 119071, 19 June 1997, 274 SCRA 328, 335; People v. Ramirez, G. R. No. 97920, 20 January 1997, 266 SCRA 335, 352.] What makes private complainant's testimony doubly credible was the fact that no improper reason or ill motive could be imputed to her as would impel her to falsely charge accused-appellant, her mother's godson and a former neighbor, of such a grave crime as rape.

Moreover, private complainant's testimony was corroborated by Dr. Diosdado Fuentebella who affirmed on the witness stand the presence of spermatozoa in her vaginal secretion, consistent with the claim of recent sexual contact. Although no sign of external physical injury was noted on her body the same did not negate her claim of rape. We have held that it was not necessary that there be marks of physical violence on the victim's body because the exertion of irresistible force by the accused is not an element of the offense,27 [People v. Tayag, G.R. No. 105803, 12 October 1993, 227 SCRA 169, 177.] more so when the force required to overwhelm a child especially one who is of subnormal mental capacity like herein private complainant, is obviously and understandably of a lesser degree than that needed to overwhelm a normal adult.28 [People v. Moreno, G.R. No. 126921, 28 August 1998, 294 SCRA 728, 739-740.] Considering that accused-appellant was at the time of the incident a thirty-five (35)-year old normal male while private complainant was a puny thirteen (13)-year old with a mental capacity of an eight (8)-year old, it is not really difficult to understand how accused-appellant succeeded in his criminal design with minimal force - but force nonetheless29 [See Note 24.] - such that no manifestation of physical injury was noted on private complainant.

Considering all the foregoing, we affirm the trial court's finding of accused-appellant's guilt beyond reasonable doubt of the crime of rape. A slight modification of the Decision however is in order. The trial court merely ordered accused-appellant to pay private complainant P50,000.00 as civil indemnity. But since moral damages are now automatically awarded to victims of rape without need of proving the same,30 [People v. Capillo, G. R. No. 123059, 25 November 1999 citing People v. Caballes, G. R. Nos. 102723-24, 19 June 1997, 274 SCRA 83 and People v. Calayca, G. R. No. 121212, 20 January 1999.] the additional amount of P50,000.00 may properly be awarded in favor of private complainant Maria Theresa Obias. Esä m

WHEREFORE, the judgment appealed from finding accused-appellant ROLANDO ATIENZA Y BAUTISTA guilty of rape beyond reasonable doubt, imposing upon him a prison term of reclusion perpetua and ordering him to indemnify private complainant Maria Theresa Obias in the amount of P50,000.00 is AFFIRMED. He is further ordered to pay her an additional amount of P50,000.00 for moral damages in accordance with recent jurisprudence. Costs against accused-appellant Rolando Atienza y Bautista.

Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.