Before us by way of automatic review is the judgment of conviction rendered by the Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch 41, imposing the death penalty in an incestuous rape, said to have been perpetrated by the accused-appellant Dominador Historillo, on his own daughter Jennifer Historillo.

The criminal complaint dated November 29, 1995 reads:

During the arraignment, appellant, with the assistance of counsel, entered a plea of "not guilty."1 [Original Records, pp. 15-16.]

Thereafter, trial ensued. However, when appellant testified, he admitted that he ravished and raped private complainant and that he entered a plea of "not guilty" during arraignment because his wife was then trying to settle the case.2 [TSN, June 6, 1997, pp. 3-4.]

On June 18, 1997, the trial court rendered a decision convicting appellant of the crime of rape and sentencing him to suffer the penalty of death. The dispositive portion of the decision reads:

Considering the imposition of the extreme penalty of death, the records of the case were forwarded to this Honorable Court for automatic review.

The Solicitor General sums up the prosecution’s case against accused-appellant, viz:

x x x

Although appellant raises a lone assignment of error, to wit:

four issues have to be resolved, viz.:

On the first issue, accused-appellant maintains that he was convicted based on a defective criminal complaint because the complaint was not sworn to by Jennifer Historillo herself, and assuming the unsubscribed complaint to be valid, the same was not introduced as evidence for the prosecution.

Appellant’s contention is untenable. A complaint presented by a private person when not sworn to by him, is not necessarily void. The want of an oath is a mere defect of form which does not affect the substantial rights of the defendant on the merits. Such being the case, it is not permissible to set aside a judgment for such a defect.5 [U.S. vs. Bibal, 4 Phil. 369.] Also, the failure of the prosecution to formally offer in evidence the sworn complaint of the offended party or the failure to adhere to the rules is not fatal and does not oust the court of its jurisdiction to hear and decide the case. If the complaint is forwarded to the Court as part of the record of the preliminary investigation of the case, the court can take judicial notice of the same without the necessity of its formal introduction as evidence of the prosecution.6 [People vs. Sunpongco, 163 SCRA 222, Remedial Law by Oscar Herrera, Vol. IV, p. 49.]

Anent the second issue, the accused-appellant alleges that the prosecution failed to establish by convincing proof that Mr. Historillo employed force and intimidation against the offended party in order to attain his purpose; that although Jennifer manifested initial reluctance to her fathers erotic demands, she may have later on consented or even voluntarily submitted herself to the consummation of the carnal act allegedly because: 1.) Jennifer did not exhibit a sincere struggle to resist her father’s sexual assault, 2.) Jennifer claims she was raped by her father several times so that she had countless opportunities to bring her father to justice, yet she opted to remain silent for quite a longer period of time until she could no longer hide her pregnancy; that her delay in filing a case against her father raised the presumption that it was not rape that was truly committed but a consented crime where she partly assumes the blame; and, 3.) it could not be gleaned from Jennifer’s testimony that she was bothered by the incident; normally, a rape victim is expected to recount the incident as had happened actually; and the victim is supposed to remember vividly her revolting experience but that Jennifer seemed to be trying to concoct the events to suit her theory.

The Court is not persuaded by the above arguments of the appellant.

The law does not impose upon a rape victim the burden of proving resistance where there is intimidation.7 [People vs. Penero, 276 SCRA 564.] Moreover, in rape committed by a father against his own daughter, as in this case, the former’s moral ascendancy and influence over the latter substitutes for violence or intimidation.8 [People vs. Escober, 281 SCRA 498; People vs. Burce, 269 SCRA 293.]

On the alleged delay in filing the case against her father, suffice it to state that failure of the complainant to immediately report the rape to the police authorities does not detract from her credibility, her hesitation being attributable to her age, the moral ascendancy of the appellant and his threats against the former.9 [People vs. Antipona, 274 SCRA 328.] A victim’s disclosure that she has been raped must not be taken lightly, as it is not uncommon for a young girl to conceal for some time the assault on her virtue because of the rapist’s threats on her life, fear of public humiliation, and/or lack of courage and composure to immediately complain that she has been sexually assaulted.10 [People vs. Adora, 275 SCRA 441.]

Appellant alleges that a rape victim is expected to recount the incident as had happened actually; and the victim is supposed to remember vividly her revolting experience but that Jennifer seemed to be trying to concoct the events to suit her theory.

On the contrary, this Court has held countless times that a rape victim is not and cannot be expected to keep an accurate account of her traumatic experience.11 [People vs. Garcia, 281 SCRA 463.] A court cannot expect a rape victim to remember every ugly detail of the appalling outrage especially so since she might in fact have been trying not to remember them.12 [People vs. Butron, 272 SCRA 352.] Rape victims do not cherish in their memories an accurate account of the dates, number of times and manner they were violated.13 [People vs. Zaballero, 274 SCRA 627.]

The most damning evidence against the appellant was his admission that indeed he raped his daughter. He testified on direct examination that:

x x x......................x x x......................x x x

x x x......................x x x......................x x x

The trial court, therefore, correctly convicted the accused-appellant of the crime of rape.

The third issue, is whether or not the qualifying circumstance of relationship must be alleged in the complaint to justify the imposition of the death penalty. We answer in the affirmative.

The trial court imposed the death penalty on appellant because of the presence of the circumstance of minority of the victim (she was only 12 years old at the time she was raped in February 1994, having been born on December 29, 1981)15 [Birth Certificate of Jennifer Historillo, Exh. "B", Orig. Records, p. 42.] as well as the relationship of the offender (father) and the victim (daughter), pursuant to Section 11 of Republic Act No. 7659, the pertinent portions of which read:

x x x......................x x x......................x x x"

The above-quoted portion provides, inter alia, that where the victim of the crime of rape is under eighteen (18) years of age and the offender is a parent of the victim, the death penalty shall be imposed. This is among the seven (7) circumstances enumerated in Section 11, which, as we have held in the case of People vs. Garcia,16 [281 SCRA 463.] are considered special qualifying circumstances specifically applicable to the crime of rape. In Garcia, this Court en banc declared that "although the crime is still denominated as rape, such circumstances have changed the nature of simple rape by producing a qualified form thereof punishable by the higher penalty of death. We reiterated this ruling in subsequent en banc cases of People vs. Ramos17 [G.R. No. 129439, Sept. 25, 1998; 296 SCRA 559.] People vs. Leopoldo Ilao,18 [G.R. No. 129529, Sept. 29, 1998; 296 SCRA 658.] People vs. Omar Medina,19 [G.R. No. 126575, Dec. 11, 1998; 300 SCRA 98.] and People vs. Artemio Calayca,20 [G.R. No. 121212, Jan. 20, 1999; 301 SCRA 192.] with further pronouncement that these seven new attendant circumstances introduced in Section 11 of R.A. No. 7659 "partake of the nature of qualifying circumstances and not merely aggravating circumstances," since the said qualifying circumstances are punishable by the single indivisible penalty of death and not reclusion perpetua to death.

A reading of the Complaint for rape filed against appellant in the present case reveals that he is merely charged with the crime of simple rape which warrants the imposition of the penalty of reclusion perpetua and not death. This is so because the fact of the minority of the victim and the relationship of the offender as the father of the victim are not alleged in the Complaint. As emphasized in People vs. Ramos, the elements of minority of the victim and her relationship to the offender must concur. Since the charge of rape in the Complaint is not in its qualified form so as to fall under the special qualifying circumstances stated in Sec. 11 of R.A. 7659, the penalty of death should not have been imposed on the appellant.

It has long been the rule that qualifying circumstances must be properly pleaded in the indictment. If the same are not pleaded but proved, they shall be considered only as aggravating circumstances.21 [People vs. Jovellano, et al., 56 SCRA 156 (1974); People vs. Fuertes, 229 SCRA 289 (1994), cited in People vs. Garcia, 281 SCRA 463.] Indeed, 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 the capital punishment was not alleged in the indictment on which he was arraigned.22 [People vs. Garcia, 281 SCRA 463.] Thus, the Decision of the trial court imposing the death penalty on the accused-appellant must be modified in that the appellant should be declared guilty of simple rape and sentenced to suffer the lower penalty of reclusion perpetua.

The fourth issue is whether or not the rape victim is also entitled to moral and exemplary damages. We rule that aside from the indemnity of P50,000.00 awarded by the trial court, the victim is also entitled to moral damages, as held in People vs. Prades, even if there was no proof presented during the trial as basis therefor23 [G.R. No. 127569, July 30, 1998, 293 SCRA 411.] and exemplary damages since the crime was committed with an aggravating circumstance,24 [People vs. Estares, 282 SCRA 524.] thus appellant is also liable for P25,000.00 as exemplary damages.25 [People vs. Calayca, G.R. No. 121212, Jan. 20, 1999; 301 SCRA 192.]

WHEREFORE, the judgment of the trial court convicting appellant DOMINADOR HISTORILLO of qualified rape is MODIFIED in that the appellant is declared guilty of simple rape and is hereby sentenced to suffer the penalty of reclusion perpetua and to pay Jennifer Historillo the sum of P50,000.00 by way of indemnity, P50,000.00 as moral damages and P25,000.00 as exemplary damages.

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

Vitug, J., on official business.