For automatic review here is a judgment handed down by Branch 161 [Presided by Judge Teodulo E. Mirasol.] of the Regional Trial Court in Ilagan, Isabela, finding appellant Lodrigo2 [Also referred to as "Rodrigo" in the records.] Bayya guilty of incestuous rape and sentencing him to the ultimate penalty of DEATH.

Filed on October 9, 1995 by Asst. Provincial Prosecutor Pacifico Paas and docketed as Criminal Case No. 2467, the accusatory portion of the Information indicting appellant, alleges:

After appellant pleaded Not Guilty upon arraignment on Nov. 22, 19954 [Certificate of Arraignment, Original Records, p. 29.], trial ensued.

From the decision of Nov. 15, 1996 under review, it can be gleaned that:

Appellant and his wife, Cecilia Bayya, took the witness stand for the defense.

Appellant unhesitatingly admitted having carnal knowledge of his daughter, Rosie Bayya, twice but theorized that he was "out of his mind"7 [TSN, August 27, 1996, p.4.] when he did the lecherous acts on her. He traced his criminal behavior to a childhood that was neglected and forlorn in the mountains of Isabela, let alone the maltreatment endured in the hands of his very own parents.8 [Ibid., pp. 5 & 7.]

On the other hand, Cecilia Bayya, mother of the victim and wife of appellant, manifested on the witness stand her "neutral" stance9 [TSN, July 12, 1996, p. 28.] in the case. Nonetheless, she disclosed that she had forgiven her husband for his salacious conduct since they are poor and she cannot eke out a living without appellant as breadwinner.10 [Ibid., p. 29.]

Finding the facts established by the evidence falling squarely under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, the lower court, after trial on the merits, rendered a judgment of conviction, sentencing appellant to suffer the ultimate penalty of DEATH, disposing thus:

At the outset, it bears stressing that having admitted authorship of the offense charged, appellant does not dispute the trial court’s finding of guilt. However, appellant questions the penalty imposed below, contending that since the information made no reference to Republic Act No. 7659, it was a reversible error to convict thereunder. And because the only penal provision relied upon by the prosecution is Article 335 of the Revised Penal Code, he could only be sentenced to the maximum penalty of reclusion perpetua in accordance therewith.

Therefore, the only issue raised by appellant is whether there was a transgression of his right to be informed of the nature and cause of accusation against him, in view of the fact that the Information is silent about the applicability of R.A. No. 7659.

While departing from appellant’s strained reasoning, the Court nonetheless agrees with and adopts his submission that the trial court erred in imposing the capital punishment on him.

A careful perusal of the Information indicting appellant reveals a crucial omission in its averments of the minority of the victim, Rosie S. Bayya.

Instructive in this regard is Section 6, Rule 110 of the Rules of Court, which reads:

The purpose of the above-quoted rule is to inform the accused of the nature and cause of the accusation against him, a right guaranteed by no less than the fundamental law of the land.12 [Article III, Section 14 (2), 1987 Constitution.] Elaborating on the defendant’s right to be informed, the Court held in Pecho vs. People13 [262 SCRA 518.] that the objectives of this right are:

It is thus imperative that the Information filed with the trial court be complete - to the end that the accused may suitably prepare his defense. Corollary to this, an indictment must fully state the elements of the specific offense alleged to have been committed as it is the recital of the essentials of a crime which delineates the nature and cause of accusation against the accused.14 [People vs. Ramos, 296 SCRA 559.]

The Court held recently that to sustain a conviction under Article 335 of the Revised Penal Code as amended by Republic Act No. 7659, the prosecution must allege and prove the basic elements of: 1) sexual congress; 2) with a woman; 3) by force and without consent, and in order to warrant the imposition of the death penalty, the additional elements that 4) the victim is under 18 years of age at the time of the rape; and 5) the offender is a parent (whether legitimate, illegitimate or adopted) of the victim.15 [People vs. Silvano, G.R. No. 127356, June 29, 1999.]

In the case under scrutiny, the information does not allege the minority of the victim, Rosie S. Bayya, although the same was proven during the trial as borne by the records. The omission is not merely formal in nature since doctrinally, an accused cannot be held liable for more than what he is indicted for. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted of any offense, not charged in the Complaint or information on which he is tried or therein necessarily included. 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 an offense higher than that charged in the Complaint or information on which he is tried would constitute unauthorized denial of that right.16 [People vs. Ramos, supra p. 576 citing: Matilde, Jr. vs. Jabson, 68 SCRA 456.]

The Information under consideration charges nothing more than simple rape defined and penalized in the first and second paragraphs of Article 335 of the Revised Penal Code, that is - having carnal knowledge of a woman by means of force and intimidation and against her will. The additional allegation that the offender is a parent of the offended party can only be deemed a generic aggravating circumstance. The failure of the prosecution to allege the age of the victim has effectively removed the crime from the ambit of Section 11 of Republic Act No. 7659 prescribing the death penalty "when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consaguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim".

Previously, this Court had occasion to hold that the death penalty may be imposed only If the information alleges and the evidence has proven both the age of the victim and her relationship to the offender.17 [People vs. Tabion ,G.R. No. 132715, October 20, 1999; see also: People vs. Maglente, G.R. No. 124559-66, April 30, 1999; People vs. Acala, G.R. Nos. 127023-25, May 19, 1999.] This theory of "concurring allegations" finds support in the earlier case of People vs. Ramos18 [People vs. Ramos, supra.] where the Court enunciated that the concurrence of the minority of the victim and her relationship with the offender gives a different character to the rape defined in the first part of Article 335 of the Revised Penal Code, having, as it does, the effect of raising the imposable penalty for rape from reclusion perpetua to the higher and supreme penalty of DEATH.

The Court explained in Ramos that relationship and minority must be alleged jointly if the death penalty is sought to be imposed because the same partakes of the nature of a special qualifying circumstance which has the effect of increasing the prescribed penalty by degrees. When either one of the said circumstances is omitted or lacking, that which is pleaded in the information and proven by the evidence may be considered merely as a generic aggravating circumstance in accordance with the general principles of criminal law. But since the penalty for simple rape under Article 335 of the Revised Penal Code is the single indivisible penalty of reclusion perpetua, the generic aggravating circumstance cannot effectively augment the criminal liability of appellant, it being required that the single indivisible penalty prescribed by law is to be applied regardless of any modifying circumstance in attendance.

Since the appellant had been informed of the elements of simple rape under the information indicting him and nothing more, he could only be convicted of simple rape and sentenced to reclusion perpetua as prescribed by law.19 [Article 335, par. 2, Revised Penal Code.]

In conclusion, the Court also takes note of the fact that the trial court failed to award an indemnity ex delicto to the victim pursuant to Article 10020 [Art. 100. Civil liability of a person guilty of a felony.- Every person criminally liable for a felony is civilly liable.] in relation to Article 10421 [Art. 104. What is included in civil liability.- The civil liability established in Articles 100, 101, 102 and 103 of this Code includes:

3. Indemnification for consequential damages.] of the Revised Penal Code. In line with prevailing jurisprudence, moral damages should also be awarded to the victim in such amount as the court deems just22 [People vs. Prades, 293 SCRA 411.]. The award of exemplary damages is also indicated considering that the relationship between the offender and the victim aggravates the crime of rape, such as in the present case.

WHEREFORE, the judgment of conviction under review is AFFIRMED with the MODIFICATION that appellant LODRIGO BAYYA is adjudged guilty of simple rape and is sentenced to suffer the penalty of reclusion perpetua. He is further ordered to pay the victim, ROSIE S. BAYYA, P50,000.00 as indemnity ex delicto, apart from P50,000.00 as moral damages and P 25,000.00 as exemplary damages. Costs against the appellant.

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