WBench1

EN BANC

[G.R. No. 138983. May 23, 2001]

PEOPLE OF THE PHILIPPINES plaintiff-appellee, vs. GENER B. AGONCILLO, accused-appellant.

D E C I S I O N

GONZAGA-REYES, J.:

This is an automatic review of the Decision[1] dated April 27, 1999 of the Regional Trial Court of Kalibo, Aklan, Branch 2 in Criminal Case No. 5006 finding the accused, Gener B. Agoncillo guilty beyond reasonable doubt of the crime of rape committed with the use of a deadly weapon.

On August 28, 1997, Rosalyn Salvador y Patricio assisted by her mother, Artily P. Salvador filed a complaint[2] for rape against the accused. The complaint alleged:

“That on or about the 2^nd day of July, 1997, in the evening, in Barangay Napti, Municipality of Batan, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs and by means of force and intimidation, did then and there willfully, unlawfully and feloniously with use of a scythe, has carnal knowledge with the said ROSALYN P. SALVADOR, a minor of fourteen (14) years of age, against her will and without her consent.”

On September 21, 1998, the accused was arraigned and with the assistance of counsel entered a plea of not guilty.[3] Thereafter, trial ensued.

The trial court summarized the evidence presented by the prosecution and the defense as follows:

“EVIDENCE FOR THE PROSECUTION

The following are the witnesses presented by the prosecution and the substance of their testimonies:

1) Dr. Lendelino B. Meñez, 52 years old, married, physician and a resident of Villa Emilia Subdivision, Estancia, Kalibo, Aklan, testified:

That he is one of the physicians of Aklan Provincial Hospital; that on July 3, 1997, the victim was in the said hospital for a medico-legal examination in connection with her complaint that she was raped; that as per his examination on the victim, the latter suffered slight hymenal laceration at 6:00 o’clock position; that he also found “Endurated area around the vagina (reddening)”; that the hymenal laceration was caused by a male sex organ (TSN – Anino, 12/10/98; Exh. “B”).

2) PO2 Jose Patron, 32 years old, married, PNP Member and a resident of Barangay Angas, Batan, Aklan, testified:

That he is a police office officer assigned at Batan, Aklan; that on July 5, 1997, at around 8:30 A.M., the victim and her mother went to the police station and reported to him that the victim was raped; that it was the victim herself who told him that it was the accused who sexually assaulted her; that he entered the said report in the police blotter; that he thereafter referred the case to the Women’s Desk, PNP, New Washington, aklan (TSN – Anino, 12/10/98; Exh. “O”).

3) Rosalyn P. Salvador, 15 years old, single, student and a resident of Barangay Napti, Batan, Aklan, testified:

That she is the victim in this case; that she is 14 years old at the time of rape, having (sic) born on August 22, 1982; that in the evening of July 2, 1997, her father and mother went to the river to catch fish; that her only companions in their house during that night were her three (3) younger brothers, namely: Julie (8 years old), Cris (10 years old) and Victor (13 years old); that they went to bed at around 8:00 P.M.; that at around 11:00 P.M., she roused to look at their wall clock if it is already time to prepare their breakfast; that suddenly, somebody covered her mouth and told her not to shout or else, he will cut off her head; that the said person was armed with a scythe; that she was then dragged to the banana plantation where she was ordered to lie on the ground and not to shout under threat that if she will not obey, he will sickle her neck; that the said person then started to kiss her; that because of the frequent flashes of light in the sky (caused by lightning), she was able to recognize that person as the herein accused; that she knows the accused since the latter was always passing near their house; that the accused kissed her lips and vagina; that he spread her legs, placed himself on top of her and tried to insert his penis into her vagina; that because the accused found it difficult to insert his penis into her vagina, he instead inserted his finger until such time that he was able to insert his penis; that the accused then pushed and pulled his penis in her vagina; that it was painful; that after several minutes, the accused stood up and wiped his sweat; that thereafter, she was accompanied by the accused up to the bamboo plantation and warned her that he will kill them all if she will tell her parents on what happened to her (TSN – Anino, 1/11/99; 1/13/99; TSN – Gumban, 1/12/99; Exh. “A” and “I”).

4) Artily Salvador, 45 years old, married, and a resident of Barangay Napti, Batan, Aklan, testified:

That she is the mother of the victim; that in the evening of July 2, 1997, she and her husband went fishing at the swamp; that they left their house at around 5:30 P.M. and stayed at the swamp the whole night; that they were able to return home at around 6:00 A.M. the following day, July 3, 1997; that when they reached their house, she saw the victim by the door who was about to cry; that when they went inside the house, the victim cried and told her that she was raped by the accused; that upon hearing that news, she dumped her thermo chest and proceeded to the house of the accused; that she saw the accused feeding his pigs; that she asked the accused where he was on the night of July 2, 1997; that the accused replied that he was in the house of a certain Delia watching T.V. show; that she then went to the house of Delia and tried to verify the allegation of the accused; that Delia informed her that the accused was indeed in their house on that night up to 10:30 P.M.; that on her way home, she again met the accused on the road; that when the accused asked her why she was looking for him, she did not tell him the reason and merely said: “Nothing”; that the accused told her to file a case against him if she so desires; that she then went to the house of the Barangay Captain and reported what the accused did to her daughter; that thereafter, they reported the matter to the Batan Police Station; that the police officer of Batan advised her to go to New Washington, Aklan to report this to Policewoman Isada; that Policewoman Isada brought them to the Provincial Hospital and had the victim medically examined; that on August 23, 1997 at around 6:00 P.M., the father and two uncles of the accused went to their house to talk of settling the case against the accused; that the said trio wanted that the accused and the victim be married to each other; that when she refused, the said persons went home (TSN – Anino, 1/13/99; TSN – Gumban, 1/14/99).

Recalled as a rebuttal witness, Artily Salvador testified that it is not true that the father of defense witness Rene dela Cruz was already dead at the time of the subject rape as the said person died in June 1998; that the accused used to sport long hair; that the testimony of defense witness Pepito Torres to the effect that she was looking for a person with long hair and mustache is not true because what she asked from the said witness was the whereabouts of the accused; that it is not true that their banca and fishing net were destroyed (TSN – Gumban, 3/15/99, Rebuttal).

5) Delia Rosales, 57 years old, married, Municipal civil Registrar of Batan, Aklan and a resident of Ambulong, Batan, Aklan, testified:

That she is the Civil Registrar of Batan, Aklan; that she issued the certified true copy of the birth certificate of the victim (Exh. “D”, TSN – Gumban, 1/14/99).

Ms. Rosales further testified that she also issued the certificate of death of one Remegio dela Cruz, who died on June 26, 1998 (Exh. “E”; TSN – Gumban, 3/15/99, Rebuttal).

EVIDENCE FOR THE DEFENSE

The following are the witnesses presented by the defense and the substance of their testimonies:

1) Rene dela Cruz, 36 years old, single, farmer and a resident of Barangay Napti, Batan, Aklan, testified:

That on July 2, 1997, his younger brother Roque arrived in his house together with his friend Regie and the accused at around 10:30 P.M.; that they came from the house of a certain Delia Torres where they watched T.V. shows; that the said persons slept in his house; that when he woke up to urinate at around 12:30 A.M., the accused was still sleeping in bed; that when he got up from bed at 4:00 A.M., the accused was still sleeping; that the accused woke up at 5:00 A.M. of July 3, 1997; that the accused was always sleeping in his house; that his brother Regie is no longer residing in his house because he went to Manila in June 1996 (TSN – Anino, 2/24/99).

2) Pepito Torres, 57 years old, fisherman, and a resident of Barangay Napti, Batan, Aklan, testified:

That in the evening of July 2, 1997, there were many people in their house watching television shows; that the accused was one of them; that the accused together with Rochie and Regie left their place at around 10:00 P.M.; that the following morning, July 3, 1997, the mother of the victim asked him and his wife Delia Torres who were those who watched television in their house on July 2, 1997; that the said mother of the victim also asked him if there was a person with a beard and sporting long, curly hair who watched television; that he replied in the negative; that the accused at that time was sporting a short hair and had a clean face (TSN - Gumban, 2/25/99).

3) Jesus Penalba, 39 years old, married, tricycle driver and resident of Napti, Batan, Aklan, testified:

That he is a neighbor of defense witness Rene dela Cruz; that on July 2, 1997 at around 10:30 P.M., he was awakened by the noise created by the accused and his two companions, Rochie and Regie; that he saw them when he went down to his kitchen and peeped through its bamboo slats; that the weather was bad at that time; that the following morning, July 3, 1997, he plied his route as a tricycle driver; that when he returned home at around 9:00 A.M., his wife told him that the mother of the victim asked her what time did he go home the night before, July 2, 1997 (TSN – Gumban, 2/23/99).

4) Rael Trinidad, 43 years old, married, Barangay Kagawad and a resident of Napti, Batan, Aklan, testified:

That he is a member of the Barangay Council of Napti, Batan, Aklan; that the accused is his distant relative; that on July 3, 1997 at around 7:00 A.M., he met the father of the victim by the road; that the father of the victim brought him to the banana plantation where the victim was raped; that the said place is around 30 meters away from the house of the victim; that the said place is dark because it is full of banana plants and the banana leaves are dense; that the father of the victim informed him tha the perpetrator has curly hair and bearded; that he was also informed they were suspecting Roque and Regie because the said duo frequently hunt birds in that place (TSN – Anino, 2/26/99).

5) Gener Agoncillo, 40 years old, single, farmer and resident of Napti, Batan, Aklan, Testified:

That he is the accused in this case; that he knows the victim and the latter’s parents for a long time already; that the parents of the victim have a hostile feeling to him as they suspected that he was the one who punched a hole in their fishing boat and slashed their fishing net; that on July 2, 1997 at around 8:00 P.M., he was in the house of defense witness Pepito Torres; that he, together with his two friends, Roque and Regie, left that place at past 10:00 P.M.; that before they left, they requested for a torch from Pepito Torres because the night was very dark; that they spent the night in the house of Roque dela Cruz; that they slept at around 11:00 P.M.; that he woke up at around 5:00 A.M. of July 3, 1997; that thereafter, he went home and fed his pigs; that while he was feeding his pigs, the mother of the victim arrived and asked him where he was on the night of July 2, 1997; that after answering her that he slept in the house of Rene dela Cruz, he asked her why she was asking him where he was at that time; that she answered: “Basta” (I just want to know), and then she left; that later on, he again met her and he asked her again what her problem was; that when she did not answer, he told her that if she has any complaint, she should just file it; that one of the police officers who was present when he was first invited to the Batan Police Station is the husband of the Barangay Captain of Napti, Batan, Aklan; that the said Barangay Captain is the principal sponsor in the wedding of the parents of the victim; that he has a misunderstanding with the family of the said Barangay Captain because he transferred to another camp during the barangay election; that it is not true that he frequently passes along the road near the victim’s house; that his present hairstyle and mustache are the same as those before July 2, 1997; that he did not authorize his father and two uncles to negotiate with the family of the victim for the settlement of this case; that when he asked his father and two uncles if it is true that they went to the place of the victim to settle this case, they denied the same; that he knows that the parents of the victim are out fishing every night; that he is still single despite of his age; that he is not courting any girl anymore because he “was in despair” when the parents of his former girlfriend and supposed bride objected to their marriage in 1982 (TSN –Gumban, 3/1/99; TSN, Anino, 3/4/99).”[4]

On April 27, 1999 the trial court rendered a decision finding the accused guilty beyond reasonable doubt of the crime of rape; the dispositive portion of the decision reads:

“WHEREFORE, the Court finds the accused GENER AGONCILLO Y BONSUELO, GUILTY beyond reasonable doubt of RAPE and hereby imposes upon him the supreme penalty of DEATH.

Further, the Court hereby orders the said accused to pay to the victim Rosalyn P. Salvador the amount of P75,000.00 as indemnity for the said offended party.

With COSTS against the accused.

SO ORDERED.”[5]

In view of the imposition of the death penalty, the case is now before this Court on automatic review.

In his brief, the accused-appellant assigns the following errors committed by the trial court:

THE COURT A QUO ERRED IN GIVING CREDENCE TO THE INCREDIBLE TESTIMONY OF THE COMPLAINANT AND IN DISREGARDING THE EVIDENCE FOR THE DEFENSE.

THE COURT A QUO ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT.[6]

In support of his appeal, accused-appellant argues that the prosecution failed to establish the identity of Rosalyn’s assailant beyond reasonable doubt considering that her identification of him failed to pass the rigid test of positive identification. Accused-appellant points out the fact that it was very dark on the night Rosalyn was raped and that the illumination produced by the flashes of lightning rendered it difficult for her to see and identify her assailant. Accused-appellant also argues that his defense of alibi whereby he claims that he was sleeping in the house of Rogelio De La Cruz from 11:00 p.m. until 5:00 a.m. of July 2, 1997 proves that it was physically impossible for him to have been at the place of the commission of the crime. Moreover, accused-appellant contends that Rosalyn’s testimony is tainted with numerous inconsistencies which cast serious doubt on the veracity of her assertions. Rosalyn underwent a medical examination the results of which were placed in a medico-legal report yet the injuries which she claimed to have sustained by reason of the assault, i.e. contusions and hematoma on her lips and neck, were not described therein. Accused-appellant also maintains that the acts of the victim, her mother as well as her other siblings runs counter to human nature and experience. In her testimony, Rosalyn’s mother, Artily stated that Rosalyn told her that accused-appellant raped her on the morning following the alleged rape; that upon discovery thereof, she immediately looked for accused-appellant to verify his whereabouts on the night of the rape; and that she remained calm even as she confronted accused-appellant regarding the same. It is accused-appellant’s contention that had Artily believed that accused-appellant indeed raped Rosalyn, her natural reaction would have been to become hysterical and she would not have remained calm. Furthermore, at the time of the incident, Rosalyn’s siblings, who were with her in the house, did not take any steps to protect or help her, thus belying the commission of the crime imputed to him. Even assuming for the sake of argument that the prosecution has proved accused-appellant’s guilt beyond reasonable doubt, he contends that the lower court erred in appreciating the aggravating circumstances of dwelling, nighttime and uninhabited place despite the fact that the prosecution failed to present any evidence to prove the same. It is also his position that the lower court erred in convicting him of rape with the use of a scythe in order to justify the imposition of the death penalty despite the fact that the prosecution did not present the scythe in court to support such allegation. Finally, accused-appellant claims that the lower court was partial and biased and in fact pre-judged the case against him and that the lower court assumed facts not proved during trial all to the detriment of accused-appellant.

The arguments presented by accused-appellant do not persuade us. An examination of all the evidence presented before the trial court leads us to no other conclusion than that Rosalyn was indeed raped by accused-appellant.

Accused-appellant’s main defense consisting of denial and alibi is not tenable. The defense of alibi is the weakest of all defenses for it is easy to contrive and difficult to prove.[7] Moreover, these defenses are overcome by a witness’ positive identification of him as the perpetrator of the crime.[8]

In the present case, Rosalyn categorically identified accused-appellant as her assailant and narrated vividly the sexual assault committed against her. Rosalyn also established that although it was dark, the light emitted from the constant flashes of lightning that evening sufficiently illuminated the face of accused-appellant to enable her to recognize him, thus:

“DIRECT EXAMINATION BY PROSECUTOR OFIALDA:

Q: Miss Witness, do you remember where were you on July 2, 1997 in the evening, around 11:00 o’clock?

A: Yes, sir.

Q: Where were you then?

A: I was at home.

Q: And where is this house of yours located?

A: At Napti, Batan, Aklan.

Q: What municipality?

A: Batan.

Q: What province?

A: Aklan.

Q: You said you were in your house at that time and date, what were you doing then?

A: I was intending to see the watch but I was surprised that somebody covered my mouth.

Q: Why were you intending to see the watch what, was your purpose?

A: Because if it is already at dawn time, I have to prepare breakfast.

Q: You said someone covered your mouth; what happened after someone covered you mouth?

A: The person covered my mouth told me not to shout or else, he will cut-off my head.

Q: You said he would cut-off your head, why, do you have other companions at that time?

A: Yes, sir.

Q: Who were your companions?

A: Cris, Julie and Victor.

Q: How are these Cris, Victor and Julie related to you?

A: They are my brothers.

Q: After the person uttered he would behead you what did he do after that?

A: He brought me to the sala and he kicked that aluminum used in setting fire.

COURT: (To witness)

Q: He said that your head will be cut-off if you make any movement or shout, was he armed at that time?

A: Yes, Your Honor.

Q: What was his arm?

A: A scythe.

COURT:

Continue fiscal.

PROS. OFIALDA:

Q: What is the size of that scythe?

A: (Witness demonstrated a length of 12”)

Q: What hand was holding the scythe, left or right?

A: Left hand.

Q: And after he brought you, you said at the sala which he kicked the aluminum with fire, what did he do?

A: He ordered me to remove my panties and asked me what will I prefer to be killed or to live.

Q: And after he ordered you to remove your panties, did you remove the same?

A: Not yet.

Q: And what did this person do after that?

A: He said that he will kill us.

Q: What else did he do after that?

A: He brought me to the banana plantation.

Q: Was he holding you when he brought you to the banana plantation?

ATTY. GEPTY:

Leading, Your Honor.

COURT:

Reform the question.

PROS. OFIALDA:

Q: Were you able to reach the banana plantation?

A: Yes, sir.

Q: On the way to the banana plantation what did he do?

A: He was holding me at my neck.

Q: What hand was holding your neck?

A: Right hand.

Q: And after you reach the banana plantation what did this person do to you?

A: He tried to let me lie down and kissed me.

Q: You said earlier that he ordered you to remove your panties and you said at that stage you did not yet remove your panties. At what stage did you remove you panties?

A: I removed it when he said if I will not obey him, he will kill us all.

Q: Where did you remove your panties, at your house or..

ATTY. GEPTY:

Leading, Your Honor.

COURT:

Reform you question.

PROS. OFIALDA:

Q: So, after he ordered you to remove your panties and if you will not remove he will kill you, did you remove your panties?

A: Yes, sir.

Q: You said after you reached the banana plantation he kissed you, what else did he do aside from kissing you?

A: He tried to insert his hand in my vagina and after that he inserted his penis.

ATTY. GEPTY:

We object to the interpretation, Your Honor, it is not the hand.

A: He tried to insert his finger in my vagina and after that he inserted his penis.

COURT:

He could not insert his hand. Even if she is a prostitute, no matter how big is the vagina. Alright, proceed.

PROS. OFIALDA:

Q: You said he inserted his penis after inserting his finger, was his finger penetrated your vagina?

ATTY. GEPTY:

Leading, Your Honor.

COURT:

Reform the question.

PROS. OFIALDA:

Q: What else did that person do after he inserted his finger?

COURT:

She already answered that he inserted his penis. And after inserting his penis, what else did he do? How long did he insert the penis inside your vagina?

A: For a long time.

Q: How many minutes?

A: Around fifteen (15) minutes.

Q: When he inserted his penis what did he do after inserting?

A: He continued kissing and inserting his finger in my vagina.

Q: What movements did he do when his penis was inserted?

A: He stood up and wiped his perspiration.

Q: Do you understand the question? Do not be ashamed, tell the truth. It would be the basis for the acquittal or the conviction of the accused. Tell the truth. After inserting his penis he then stood up? Is that true or not?

(Witness at this stage is crying).

xxx xxx xxx

PROS. OFIALDA:

Q: Were you able to recognize that person?

A: Yes, sir.

Q: How did you recognize him?

A: Because there was lightning and it was somewhat bright because of the lightning.

Q: and who was that person you said you recognized later?

COURT:

Tell the name.

A: Gener Agoncillo. (Witness pointed to a person seated on the bench)

ATTY. GEPTY:

We would like to manifest, Your Honor, that when she pointed the accused, the accused is seated alone on the bench designated for the accused.

PROS. OFIALDA:

We would like to manifest, Your Honor, that the victim cried pointing to the accused.

(To witness)

Will you please step down from the witness stand and point to the Court?

COURT:

Tap his shoulder.

(Witness pointed to a person who when asked his name answered, Gener Agoncillo).[9]

Accused-appellant attempts to discredit Rosalyn’s identification of him by claiming that it was highly improbable for her to have seen his face considering the circumstances surrounding her abduction. We are however convinced that the trial court did not err in upholding the credibility of Rosalyn and her positive identification of the accused-appellant.

First, Rosalyn was familiar with accused-appellant since he frequently passed the road fronting her house.[10] Accused-appellant’s claim that he never passed the feeder road fronting Rosalyn’s house is belied by his own testimony, thus:

“PROS. OFIALDA:

Q: Every time that you finish viewing television episode in the house of Pepito Torres, you always go home in the house of Rene dela Cruz, is that correct?

A: Yes, Sir.

Q: According to you the house of Rene is 200 meters away from the house of Pepito?

A: Yes, Sir.

Q: And your house from the house of Pepito is also 200 meters?

A: More than that distance.

Q: More than 300 meters?

A: Less than that.

Q: For how long have you been watching television in the house of Pepito Torres?

A: For a long time already.

Q: You are always passing the same path to the house of Pepito Torres and the house of Rene dela Cruz?

A: Yes, Sir.

Q: And this is not a rice paddy?

A: No, it is a feeder road.

Q: The way from the house of Pepito Torres to the house of Rene is a feeder Road?

A: Yes, Sir.

Q: So you are very much familiar with the road or the path?

A: Yes, Sir.

COURT

Q: From your house to the house of Pepito, do you have to pass the house of the victim?

A: Yes, Your Honor.”[11]

Second, Rosalyn had ample opportunity to ascertain the identity of accused-appellant considering the length of time she spent with him from the time she was abducted from her home at 11:00 p.m. and brought to the plantation until the time she returned home at 2:00 a.m.. Moreover, we agree with Rosalyn that the light emitted from the constant flashes of lightning enabled her to see accused-appellant’s face. Her proximity to accused-appellant during the assault leaves no doubt as to the correctness of her identification for a man and woman cannot be physically closer to each other than during the sexual act.[12]

Accused-appellant’s claim that Rosalyn’s parents have hostile feelings against him for allegedly suspecting him of punching a hole in their fishing boat and slashing their fishing net and for this reason are falsely accusing him of having raped Rosalyn is not worthy of belief. It has been held that no mother, or parent as in the present case, would stoop so low as to subject their own daughter to the hardships and shame concomitant to a prosecution for rape just to assuage their own hurt feelings. A parent would not sacrifice their daughter’s honor to satisfy a grudge, knowing fully well that such an experience would certainly damage their daughter’s psyche and mar her for life. Neither would they subject their daughter to a public trial with its accompanying stigma on her as a victim of rape, if said charge is not true.[13] Accused-appellant has failed to convincingly establish that in accusing him of rape, Rosalyn or her parents were moved by reasons other than obtaining justice.

We reject the claim that the reaction of Rosalyn’s mother, Artily, after learning that Rosalyn was raped, was not consistent with human nature. We do not find it unnatural or illogical for the victim’s mother to confront her daughter’s assailant to ascertain whether or not he indeed raped her. The fact that Artily appeared calm when she confronted him does not detract from her credibility. From the records, it appears that Artily was gathering information from possible witnesses and was being careful before she made any accusations against accused-appellant. People react differently to different situations and in the present case, the conduct of the victim’s mother at that time would not detract from the veracity of the charges against accused-appellant.

Time and again this Court has ruled that the findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect unless the court a quo overlooked substantial facts and circumstances, which if considered, would materially affect the result of the case.[14] After a careful review of Rosalyn’s testimony, we find no cogent and legal basis to disturb the trial court’s finding upholding her credibility and disregarding the testimonies of the defense witnesses, considering that she remained steadfast in her narration and unfaltering in her testimony regarding the unfortunate incident. The evaluation or assessment made by the trial court acquires greater significance in rape cases because from the nature of the offense the only evidence that can oftentimes be offered to establish the guilt of the accused is the complainant’s testimony.[15] By its very nature, rape is committed with the least possibility of being seen by the public.[16]

Moreover, there was no allegation, much less proof, that Rosalyn was motivated to falsely implicate him in the commission of such a heinous crime, and the absence of convincing evidence showing any improper motive on the part of the principal witnesses for the prosecution strongly tends to sustain the conclusion that no such improper motive exists, and that their testimonies are worthy of full faith and credit.[17]

Although the medico-legal report[18] does not state that Rosalyn sustained contusions and a hematoma on her lips and neck, the omission is not fatal. It is well-established that the medical certificate is merely corroborative in character and is not an indispensable element in rape.[19] More importantly, the contradiction existing between her testimony and the medico-legal report only pertains to the existence of the injuries she claims to have sustained on her lips and neck. There is no conflict between the said report and her claim that she was raped since the report as testified to by Dr. Landolino Meñez confirms the sexual assault.

Finally, accused-appellant’s allegation that the trial court was biased and pre-judged him is not substantiated by a reading of the records. The fact that the trial judge asked questions during the course of the trial does not necessarily make him biased especially when it appears that the questions he propounded were clarificatory in nature and obviously aimed at elucidating the testimony of Rosalyn.[20] The argument thrown in by accused-appellant that the trial court considered his alleged flight as an indication of his guilt despite the absence of proof of the same does not help his case. While we agree that it is the obligation of the prosecution to clearly establish that he in fact fled, the absence of such an incriminatory circumstance is not sufficient to exculpate him and overturn the positive evidence against him.

The trial court properly convicted accused-appellant of the crime of rape with the use of a deadly weapon, which is the crime charged in the information. Rosalyn established that when she was raped, accused-appellant brandished a scythe and threatened her with it. Although the scythe was not presented in court, the production of a weapon used in the commission of the crime is not a condition sine qua non for the discharge of the burden of proof beyond reasonable doubt for the same may not have been recovered at all from the assailant.[21]

We however are constrained to agree with accused-appellant that the trial court erred in appreciating the aggravating circumstances of dwelling, nighttime, and uninhabited place in order to justify the imposition of the death penalty.

Dwelling is considered as an aggravating circumstance primarily because of the sanctity of privacy the law accords to the human abode.[22] However, in the present case, Rosalyn was not raped therein. Although she was abducted therefrom, accused-appellant was not charged with forcible abduction with rape but only with rape. Considering that she was not raped in her home, dwelling cannot be appreciated.

The trial court also erred in appreciating the aggravating circumstance of nighttime and uninhabited place. For nocturnity to properly attend the commission of a crime, it must be shown that it facilitated the commission of the offense and that it was purposely sought by the offender. The fact that the offense was committed at night will not suffice to sustain nocturnidad.[23] In the present case, there was no evidence to prove that accused-appellant purposely sought the cover of night when he raped Rosalyn. In the same vein, the aggravating circumstance of uninhabited place cannot also be appreciated in the absence of proof that solitude was purposely sought or taken advantage of to facilitate the commission of the crime.[24] The term uninhabited place does not refer to the distance of the nearest house to the locus criminis for the more important consideration is whether the place of commission affords a reasonable possibility for the victim to receive some help.[25] The evidence on record before us fails to provide any basis to conclude that the specific circumstances surrounding the scene of the rape were such that its state of being uninhabited prevented any reasonable possibility that the victim could have possibly solicited assistance to fend off her attacker.

The crime of rape is punished under Article 335 of the Revised Penal Code, viz:

“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

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

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

Since the crime was committed with the use of a deadly weapon, i.e. a scythe, it is punishable with reclusion perpetua to death. In the absence of any mitigating or aggravating circumstances, the penalty that should thus be imposed is reclusion perpetua.[26] Accused-appellant is also hereby ordered to indemnify the victim with the amounts of P50,000.00 as compensatory damages and P50,000.00 as moral damages.[27]

WHEREFORE, the appealed decision of the Regional Trial Court finding the accused GENER B. AGONCILLO guilty beyond reasonable doubt of the crime of rape in Criminal Case No. 5006 is AFFIRMED. However, the penalty imposed is MODIFIED to reclusion perpetua, and he is further ordered to pay the victim, Rosalyn Salvador, the amounts of P50,000.00 as compensatory damages and P50,000.00 as moral damages.

No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

Bellosillo, Melo, and Kapunan JJ., on leave.