That on the 9th day of May 1995, at or about 10:00 p.m., in sitio Guiwanon, Looc, Lapu-lapu City, Philippines, within the jurisdiction of this Honorable Court, while the offended party - an 8 - year old girl - was then sleeping in their house, the aforenamed accused did then and there willfully, unlawfully and feloniously have carnal knowledge of her, and when the undersigned offended party was awakened the said accused pointed a knife at her and, by means of a threat to kill her, did then and there willfully, unlawfully and feloniously continue on having carnal knowledge of her, against her will, to the damage and prejudice of the offended party.2 [Records, p. 1.]

The prosecution built its case for the People on the testimony of the rape victim corroborated by the findings of Dr. Joycelyn Gonzales. Complainant recounted that on May 9, 1995, at about 10:00 o'clock in the evening, while she was asleep together with the accused, her common-law father, in their house and while her mother was in Sibonga, Cebu, she was awakened when the accused undressed her by removing her dress, short pants and panty. She tried to shout for help but the accused covered her mouth with his hand while the other hand was pointing a knife on her neck. The accused kissed her arms, face, lips and nipples and licked her vagina. She was instructed by the accused to spread her legs apart and the latter inserted his penis into her vagina. She felt the pain but she could do nothing because of the threat on her life by the accused. A while later, the accused pushed his penis towards the direction of her anus. She agonized in pain again and felt so tired in her efforts to free herself. Thereafter, the accused stood up while she remained crying because of the pain she felt on her vagina and anus. She went to the comfort room and dressed up herself. Immediately on the following morning, she revealed and narrated the sad experience she suffered in the hands of the accused to her aunt who occupied the second floor of the house. On that same day she was brought to the hospital for medical examination. MisÓ spped

In her cross-examination, she testified that, when she started schooling, she used to live with her mother and the accused in the same house. Her mother instructed her to call the accused her "Papa." Upon her mother's return from Sibonga, Cebu, she narrated to her the whole incident but the latter disbelieved her.

Dr. Joycelyn Gonzales, a resident physician of Lapu-lapu City District Hospital, testified she conducted a medical examination on the rape victim/complainant. Based on her findings, a contusion appeared on the hymenal wall on both sides of the vagina, while the result of the sperm analysis was negative of the presence of spermatozoa. She stressed that the contusion of the hymenal wall may have been caused by friction or injury on account of a hard object. A penis could cause a contusion of the hymen. There was no deep penetration as to cause the laceration. However, in rare cases, the hymen would still remain intact even if there is deep penetration. x x x.

Genoveva Epe, a Barangay Tanod of Looc, Lapu-lapu City, testified that on May 10, 1995 at 5:30 in the afternoon (a day following the incident), she was informed by Magdalena Baring (aunt of the rape victim) that her niece was raped by the accused. She immediately went to the residence of the accused together with Barangay Tanod Ricardo Dungog. She confronted the accused while Ricardo Dungog held the hand of the victim. Because many people converging at the place wanted to maul the accused, the latter was hurriedly brought to the police station of Lapu-lapu City for safekeeping. Sppedâ

Another prosecution witness, Magdalena Baring (aunt of the rape victim), testified she knew the accused who is the common-law husband of her cousin (rape victim's mother) who rented the first floor of her house. On May 10, 1995, at 9:00 o'clock in the morning, she noticed something unusual in the appearance of the complainant. She was very weak and refused to eat her meal. When asked about her problems, she narrated to her the sad experience the night before with the accused. She brought the complainant to the hospital for medical examination. On the same day, she brought her (rape victim) to the police headquarters of Lapu-lapu City where an investigation was conducted. A rape charge was filed with the City Prosecutor's Office of Lapu-lapu City.

She likewise testified that, when the accused was confronted by Barangay Tanod Genoveva Epe and Ricardo Dungog, she was present together with the rape victim/complainant. The accused was brought to the police headquarters of Lapu-lapu City for safekeeping because many people wanted to maul him.

In his defense, the accused testified that on May 9, 1995, at 10:00 o'clock in the evening, he was at home together with the complainant and no unusual incident ever transpired on that night. On the following day (May 10) when he went home from work, he saw many people gathered in the vicinity of their house. He was met by Magdalena Baring who advised him to run away so that nothing would happen to him but he remained afoot until he was arrested by a Barangay Tanod, whose name he could not remember anymore, and who brought him to Lapu-lapu City Police Station where he was investigated and subsequently incarcerated.

He likewise testified that at the time of the alleged incident, her common-law wife (mother of the complainant), was in Sibonga, Cebu to attend the wedding of her cousin. ScÓ lex

Lone witness for the defense Ellen Bacule, the common-law wife of the accused, testified that she lived with the accused since 1987. On May 9, 1995, at about 10:00 o'clock in the evening, she was at home together with her 8-year old daughter (the complainant) and the accused. There was no unusual incident that transpired in their house on that evening. The following day (or on May 10) at 1:00 o'clock in the afternoon, she left for Sibonga, Cebu to attend the wedding of her cousin. She left her only daughter (complainant) to her cousin, Magdalena Baring, while her common-law husband (accused) was out for work. On May 11, 1995, as she went home she was surprised upon learning that her daughter was raped by the accused. She confronted the latter who was already detained in jail at the Lapu-lapu City Police Station. The accused vehemently denied the charges against him and contended that everything was just fabricated. After the alleged incident, she never had the chance to see her daughter.

In her cross-examination, she insisted that at the time of the alleged incident, she was at home together with the accused and the complainant. However, when she was asked to comment on the contradicting testimony of the accused that, at the time of the alleged incident, she was in Sibonga, Cebu, she could not explain the inconsistencies.

She claimed that at one time after the alleged incident, she had a chance to talk to her cousin, Magdalena Baring, whom she suspected to have kept her daughter. She asked to allow her to talk to her daughter regarding the incident but her cousin never gave any information.

At the trial, she insisted that the accused was innocent and the latter could not do such rape against her daughter. She could not afford to see her husband (accused) to continue languishing in jail even if the findings of the physician would clearly show that her daughter was raped. She claimed that if it were true that her daughter was raped by her common-law husband, she would be the first one to complain x x x3 [Id., at 82-84.]

WHEREFORE, finding the accused Rolando Bacule GUILTY of rape beyond reasonable doubt, attended by the aggravating circumstances of ignominy, moral ascendancy and being the common-law spouse of the parent of the victim, he is hereby meted the maximum penalty of DEATH, and to pay the complainant the sum of P50,000,00 as Damages.

The penalty imposed on the accused being death, which under the rules has to be reviewed automatically by the Highest Court of the land, the Clerk of Court of this Branch is hereby directed to elevate the records of this case to the honorable Supreme Court as early as possible.

SO ORDERED.4 [Id., at 86.]

A : Yes, Your Honor.6 [TSN, August 15, 1995, p. 22.]

After going over the evidence on record, the Court believes that the guilt of the accused has been amply established by the prosecution. The rape victim/complainant, an 8-year old child, categorically narrated in court how she was sexually abused by the accused, her common-law father. Innocently, she gave her account from the time the accused undressed her to the time when she was deflowered. The court is convinced she could not have told the court such a horrible experience from the hands of her common-law father had said incident not really happened. In rape cases, the accused may be convicted solely on the basis of the complainant's testimony provided that the same is credible and convincing. The court finds no reason to doubt the testimony of the victim. No woman, especially of tender age would concoct a story of defloration, allows an examination of her private parts and thereafter pervert herself by being subject to a public trial, if she was not motivated solely by the desire to have the culprit apprehended and punished (People vs. Guilbao, 217 SCRA 64). The court cannot help but give full credit to the testimony of Zenaida Bacule, an 8-year old barrio lass, who in all her childhood innocence and naivety could not have concocted rape charges against the accused who treated her like his child if the sexual assault upon her were not true. The accused being her common-law father, whom she gave respect as her real father, has moral ascendancy and influence over her. She could do nothing but submit to the bestial desires of the accused, especially so that the latter had pointed a knife on her neck which scared her. One cannot expect an 8-year old young girl to act like an adult who would have the courage and intelligence to disregard a threat to her life.9 [Records, p. 85.] Joä spped

Q : What happened at the barangay level? Sppedä jo

A : After we brought the child to the Police Station, she was brought to the Barangay Captain because she was summoned.10 [TSN, September 6, 1995, pp. 9-11.]

It is the natural tendency of a man to remain for long by the side of the woman he had raped, and in public, in a highly populated area at that it is to be expected that the one who is guilty of a crime would want to dissociate himself from the person of his victim, the scene of the crime, and from all other things and circumstances related to the offense which could possibly implicate him or give rise to even the slightest suspicion as to his guilt.

Art. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a woman under any of the following circumstances.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of deadly weapon or by two or more persons, the penalty shall be reclusion perpetua to death.

When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. Miso

When the rape is attempted or frustrated and a homicide is committed by reason or on the occasion thereof, the penalty shall be reclusion perpetua to death.

When by reason or on occasion of the rape, a homicide is committed, the penalty shall be death.

The death penalty shall also be imposed if the crime or rape is committed with any of the following attendant circumstances:

While Republic Act No.7659 did not give a legal designation to the crime of rape attended by any of the seven new circumstances introduced on December 31, 1993, this Court has referred to such crime as qualified rape in a number of its decisions. However, with or without a name for this kind of rape, the concurrence of the minority of the victim and her relationship with the offender give a different character to the rape defined in the first part of Article 335. They raise the imposable penalty upon a person accused of rape from reclusion perpetua to the higher and supreme penalty of death. Such an effect conjointly puts relationship and minority of the offended party into the nature of a special qualifying circumstance. Nexâ old

As this qualifying circumstance was not pleaded in the information or in the complaint against appellant, he cannot be convicted of qualified rape because he was not properly informed that he was being accused of qualified rape. The Constitution guarantees the right of every person accused in a criminal prosecution to be informed of the nature and cause of accusation against him. This right finds amplification and Implementation in the different provisions of the Rules of Court. Foremost among these enabling provisions is the office of an Information.

The facts stated in the body of the information determine the crime of which the accused stands charged and for which he must be tried. This recital of the essentials a crime delineate the nature and cause of accusation against an accused.

It is fundamental that every element of which the offense is composed must be alleged in the complaint or information. The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense.

An accused person cannot be convicted of an offense higher than that with which he is charged in the complaint or information on which he is tried. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted of any offense, unless it is charged in the complaint or information on which he is tried or is necessarily included therein. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. To convict an accused of a higher offense than that charged in the complaint or information on which he is tried would be an unauthorized denial of that right. Maniâ kx

To be more precise, we declared in Garcia that it would be a denial of the right of the accused to be informed of the charges against him and, consequently, a denial of due process, if he is charged with simple rape and be convicted of its qualified form punishable with death although the attendant circumstance qualifying the offense and resulting in capital punishment was not alleged in the indictment on which he was arraigned.

Q : And he also pulled down your shorts? Maniksâ

A : Yes, sir.18 [TSN, August 151 1995, p. 15. Underscoring ours.]

In all cases in which the law prescribes a penalty composed of two indivisible penalties the following rules shall be observed in the application thereof:

1. When in the commission of the deed there is present only one aggravating circumstance, the greater penalty shall be applied.

2. When there are neither mitigating nor aggravating circumstances in the commission of the deed, the lesser penalty shall be applied.

3. When the commission of the act is attended by some mitigating circumstance and there is no aggravating circumstance, the lesser penalty shall be applied.

4. When both mitigating and aggravating circumstances attended the commission of the act. the courts shall reasonably allow them to offset one another in consideration of their number and importance, for the purpose of applying the penalty in accordance with the proceeding rules, according to the result of such compensation. Manikanä

A : He pushed his penis towards my anus. Oldmisâ o

(The witness is crying.) 26 [TSN, August 15, 1995, p. 6. Underscoring ours.]