For automatic review is the judgment of the Regional Trial Court of Masbate, Masbate, Branch 44, dated May 13, 1996, in Criminal Case No. 7454, imposing the penalty of death on accused-appellant, Jimmy Sabredo y Garbo, for the complex crime of abduction with rape of complainant Judeliza Sabredo. Edpsc

The facts of this case on record are as follows:

Appellant is the uncle of complainant. He is the younger brother of her father. In 1993, Jimmy arrived from Masbate to reside with Judeliza's family in Cagtagong, Caguyong, Borbon, Cebu, where he stayed with them for more than a year.

On June 27, 1994, Judeliza went to the well near their house, to take a bath. There, Jimmy grabbed and forcibly dragged her at knife's point, to the highway where he made her board a truck for Bogo, Cebu. Impelled by fear, she complied, since Jimmy continuously poked a knife under cover of his jacket at her. From Bogo, he took her by passenger motorboat to Placer, Masbate. Thence he brought her to Estampar, Cataingan, Masbate, where they stayed at the house of Conchita Tipnit. Conchita was Jimmy's sister and Judeliza's aunt, though aunt and niece did not know each other. In Estampar, Judeliza tried to escape but was caught by Jimmy, who severely mauled her until she lost consciousness. Scedp

Suspecting that Conchita would report the matter to the police, Jimmy took Judeliza by jeepney to Cagba, Tugbo, Masbate. They stayed with Roberto Sabredo, his nephew and Judeliza's first cousin. The two cousins, however, had not met before and Jimmy was able to pass her off as his wife. They stayed in Cagba from June 29 to July 5, 1994, with Jimmy closely guarding Judeliza. Calrspped

On July 4, 1994, at around midnight, Jimmy, armed with a blade, sexually assaulted Judeliza. He covered her mouth to prevent her from shouting. After satisfying his lust, Jimmy inserted three fingers into her vaginal orifice and cruelly pinched it. Judeliza screamed and cried for help. Their host, Roberto, was awakened but could not do anything to assist her. Later, Jimmy struck Judeliza with a piece of wood, rendering her unconscious. Much later, he brought her to the house of his sister, Nilda Polloso, also at Cagba.

Nilda noticed the victim's weak and wan condition and offered her medicine. Catching Jimmy in the act of boiling water, she asked what it was for and was told that it would be poured over Judeliza to finish her off. Nilda, however, stopped him. On July 8, 1994, Judeliza recovered sufficiently from her injuries. Nilda brought her to the police where Judeliza reported her ordeal. That same day, while Jimmy was sleeping, Nilda managed to take away from him the blade, made of stainless steel, which he had used in the rape of Judeliza. After the initial police investigation, Judeliza was brought to Masbate Provincial Hospital, where she was confined for four days. The medico-legal officer, Dr. Artemio Capellan, examined her. Sccalr

On August 11, 1994, the Provincial Prosecutor of Masbate filed an information for forcible abduction with rape, which alleged:

At the arraignment, Jimmy, assisted by counsel, pleaded not guilty. Trial on the merits then ensued. Calrsc

Jimmy admitted having sexual relations with Judeliza, but insisted that it was consensual. He claimed that they were lovers and had been engaging in sexual intimacies for three months before running away. He explained that they had gone to Masbate after Judeliza had revealed to him that she was not really her father's daughter. They then lived together as husband and wife. He admitted having boxed and kicked her but claimed that he got mad at her after she confided that she really was his niece, contrary to what she earlier told him. He likewise admitted having pinched the victim's vagina, but only to punish her for deceiving him about their kinship. He claimed the instant case was filed against him because of the maltreatment she received. Appellant likewise admitted that he was facing another rape case before Branch 45 of the same court, which a certain Juanita Turing had filed against him in 1992. He, however, denied having fled to Cebu to escape prosecution for said case. Sppedsc

The trial court found appellant's version of the incident preposterous and his defense untenable. Choosing to believe the prosecution, the trial judge convicted appellant, and sentenced him thus:

Before us, on automatic review of the case, appellant assigns the following errors:

In sum, the issues for resolution now concern the credibility of the testimony of the offended party; the correctness of appellant's conviction for forcible abduction with rape, and the propriety of the imposition of the death penalty on him. Sdjad

Appellant submits that Judeliza was neither a reliable nor credible witness since both the information and her affidavit2 ["Exhibit B," Id. at 4.] showed that the rape took place in Nilda's residence, while on direct examination, Judeliza testified that she was raped at Roberto's house. He claims these inconsistencies cast doubt on Judeliza's credibility.

However, we have previously held that some discrepancies between the affidavit and the testimony of the witness in open court do not necessarily impair credibility of the testimony, for affidavits are generally taken ex parte and are often incomplete or even inaccurate for lack of searching inquiries by the investigating officer.3 [People v. Perez, G.R. No. 129213, December 2, 1999, pp. 6-7, citing Sumalpong v. Court of Appeals, 268 SCRA 764 (1997).] Note that here both the affidavit and the testimony of complainant in open court are consistent as to the fact that Jimmy raped her while he threatened her with a deadly weapon on July 4, 1994. Her sworn affidavit and her testimony in open court establish the basic elements of rape. These are: the commission of sexual intercourse, by the accused against complainant, with the use of force and intimidation, without her consent and against her will. Suffice it to stress that the trial court found that the accused abducted his niece by force, mauled and maltreated her repeatedly, instilling fear in her, dragged her to different places and any house he pleased, and ravished her on the night of July 4, 1994. Whether the house belonged to Nilda or Roberto, both of whom they had stayed with, is not here crucial, for the houses are both in Cagba, Tugbo, Masbate.

Here, the trial court's assessment of the credibility of complainant's testimony is entitled to great weight, absent any showing that some facts were overlooked which, if considered, would affect the outcome of the case.4 [People v. Buendia, G.R. Nos. 133949-51, September 16, 1999, p. 1.] We find no reason to overturn the trial court's detailed evaluation of the evidence for both the prosecution and the defense. Complainant Judeliza's testimony was given in a straightforward, clear, and convincing manner, which remained consistent even under cross-examination. The trial court found her testimony believable and convincing, while appellant's version of events incredible and outrageous. Moreover, as testified by the medico-legal officer, he found that her body bore evidences of physical and sexual assault. Appellant's bare denial could not prevail over said positive evidence.

Appellant next insists that the intercourse between him and Judeliza was consensual, since they were sweethearts. A "sweetheart defense" should be substantiated by some documentary and/or other evidence of the relationship.5 [People v. Garces, Jr., G.R. No. 132368, January 20, 2000, p. 1.] In this case, there is no showing of mementos, love letters, notes, pictures, or any concrete proof of a romantic nature. Besides, as observed by the trial judge, it is contrary to human experience that a naive rural lass like Judeliza, barely nineteen years old, would willingly consent to be her uncle's paramour. Nor, would he if he were indeed her sweetheart maltreat her repeatedly for no justifiable cause, without over-straining our credulity. Misact

Was appellant's conviction by the trial court for the complex crime of forcible abduction with rape correct? The elements of forcible abduction are: (1) that the person abducted is any woman, regardless of age, civil status, or reputation; (2) that the abduction is against her will; and (3) that the abduction is with lewd designs. The prosecution's evidence clearly shows that the victim was forcibly taken at knifepoint from Borbon, Cebu by appellant and through threats and intimidation brought to various towns in Masbate, where he passed her off as his "wife". That appellant was moved by lewd designs was shown in regard to rape by his having carnal knowledge of private complainant, against her will, on July 4, 1994 at Cagba, Tugbo, Masbate. While it may appear at first blush that forcible abduction, as defined and penalized by Article 342 of the Revised Penal Code was also committed, we are not totally disposed to convict appellant for the complex crime of forcible abduction with rape. We note that while the information sufficiently alleges the forcible taking of complainant from Cebu to Masbate, the same fails to allege "lewd designs." When a complex crime under Article 48 of the Revised Penal Code is charged, such as forcible abduction with rape, it is axiomatic that the prosecution must allege and prove the presence of all the elements of forcible abduction, as well as all the elements of the crime of rape.6 [People v. Angeles, 222 SCRA 451, 458 (1993).] When appellant, using a blade, forcibly took away complainant for the purpose of sexually assaulting her, as in fact he did rape her, the rape may then absorb forcible abduction.7 [People v. Mejorada, 224 SCRA 837, 852 (1993).] Hence, the crime committed by appellant is simple rape only. Acctmis

The imposable penalty for rape under Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, is reclusion perpetua. But where the rape is committed with the use of deadly weapon or by two or more persons, the imposable penalty ranges from reclusion perpetua to death. The use of the bladed weapon already qualified the rape.8 [People v. de Leon, G.R. No. 128436, December 10, 1999, p. 11.] Under Article 63 of the Revised Penal Code, the crucial factor in determining whether appellant should be meted the death penalty is the presence of an aggravating circumstance which attended the commission of the crime.9 [People v. Bacule, G.R. No. 127568, January 28, 2000, p. 17.] A perusal of the record shows that none of the aggravating circumstances enumerated in Article 14 of the Revised Penal Code was alleged and proven by the prosecution. Where there is no aggravating circumstance proved in the commission of the offense, the lesser penalty shall be applied. Newmiso

In sentencing appellant to death, the trial court noted that the victim was his niece, a relative by consanguinity within the third civil degree. Section 11 (1) of R.A. No. 7659 imposes the death penalty when the rape victim is under 18 years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim. However, R.A. No. 7659 cannot be made to apply in the instant case for two reasons: First, at the time the rape was committed, private complainant was already more than eighteen years of age.10 [In her affidavit (Exhibit "B", Records, p. 4) dated July 11, 1994 or seven days after the rape complained of, private complainant stated that she was nineteen (19) years of age.] Second, the information did not allege that offender and offended party were relatives within the third degree of consanguinity. We have held that the seven circumstances in R.A. No. 7659 which warrant the automatic imposition of the death penalty partake of the nature of qualifying circumstances and as such should be alleged in the information to be appreciated as such.11 [People v. Villar, G.R. No. 127572, January 19, 2000, p. 13, citing People v. Dela Cuesta, G.R. No. 126134, March 2, 1999.] In view of the failure of the information to comply with this requirement, said degree of relation could not be taken into account in considering the penalty to be imposed. For these reasons, the sentence on appellant should only be reclusion perpetua. Jjlex

We note that the trial court did not award any indemnity ex delicto, which current jurisprudence has fixed at P50,000.00. Accordingly, appellant is further sentenced to indemnify private complainant in the amount of P50,000.00 for the rape he committed against her. As to moral damages, we find the trial court's award of P50,000.00 in her favor duly supported by evidence on record and is in order. Misjuris

WHEREFORE, the decision of the Regional Trial Court of Masbate, Masbate, Branch 44, in Criminal Case No. 7454, is hereby MODIFIED. Appellant Jimmy Sabredo y Garbo is declared guilty beyond reasonable doubt of simple rape only as defined and penalized under Article 335 of the Revised Penal Code. The penalty imposed on him is hereby REDUCED to reclusion perpetua. He is also ordered to indemnify the victim, Judeliza Sabredo y Espinosa, in the amount of FIFTY THOUSAND (P50,000.00) PESOS as civil indemnity, and to pay her FIFTY THOUSAND (P50,000.00) PESOS as moral damages. Costs against appellant. Jurissc

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

Kapunan, J., no part. Did not participate in the deliberations.

Purisima, J., on leave.