[ G.R. No. L-35491. May 27, 1983 ] 207 Phil. 359
EN BANC
[ G.R. No. L-35491. May 27, 1983 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EMERITO MENDEZ ALIAS EMER AND PATERNO LESULA ALIAS PATING, ACCUSED-APPELLANTS. D E C I S I O N
AQUINO, J.:
Emerito Mendez and Paterno Lesula appealed from the decision of the Court of First Instance of Bohol, finding them guilty of robbery with double rape, sentencing each of them to reclusion perpetua and ordering them to pay solidarily P5,000 each to Rufa Sombrio and Susana Sombrio as damages and P2,100 to the spouses Saturnino Pacomios and Julia Lanzaderos as the value of the objects taken during the robbery (Criminal Case No. 389).
The prosecution sought to prove that in the evening of July 7, 1971, Rufa Sombrio and her two younger sisters, Susana and Rosalina, were in the house of their grand parents, Saturnino Pacomios and Julia Lanzaderos, in Barrio Genomoan, Loon, Bohol. The grandchildren slept on the floor of the dining room while the grandparents slept on the floor of the kitchen.
At about eleven o’clock in that evening, two men, one fair and tall and the other dark and short, each armed with a gun and provided with a flashlight, and without wearing any disguise at all, entered the house. They intimidated the five occupants and hogtied them with strips of cloth torn from blankets.
They ransacked the house. They were able to get cash and other objects which were evaluated by the trial court at P2,100.
Rufa Sombrio, 24, a college student, testified that the tall man took her to the sala, while her hands were hogtied, and by means of threats to kill her, forced her to lie down and raped her. She remembered his features because they were revealed by the flashlight and by the kerosene lamp in the altar of the sala.
Susana Sombrio, 17, a high school student, testified that the short man took her to one of the rooms, gagged her, forced her to lie down, and raped her while her hands were hogtied. She remembered his face because it was lighted by the lamp in the sala through which they passed.
Rufa and Susana were examined on the following day, July 8, 1971, by a lady physician. She found fresh lacerations of the hymen at the 3, 5, 6, 9 and 10 o’clock positions, congested vaginal mucosa and the presence of whitish mucoid discharge. There were spermatozoa smears in their vaginas which each admitted a finger easily. (Exh. A, B and B-1).
The crime was reported to the police of Loon. The culprits remained unidentified. Then, on July 26, 1971 (about two weeks after the incident), Rufa and Susana, with their uncle Emiliano Antiola, while standing at the junction in Barrio Catagbacan, Loon, waiting for a truck, saw a person named Paterno Lesula alias Pating standing at the corner of the junction. They pointed Lesula to their uncle.
On August 1, 1971, at a police lineup, Rufa Sombrio identified Emerito Mendez as the tall man who robbed her grandparents’ house and raped her. Rufa and Susana executed affidavits charging Mendez and Lesula (the short man) with robbery with double rape (Exh. C, C-1, E and E-1). The two accused did not present evidence at the preliminary investigation. During the trial Rufa and Susana unhesitatingly pointed to Mendez and Lesula as their respective rapists.
Even during the preliminary investigation, Susana Sombrio declared: “We not have any slight doubt because we had clearly seen their faces when they robbed and raped us and we will never forget their faces and will stand firm before the court” (p. 20, Folder of Exhibits).[*]
Appellants contend in this appeal that the trial court erred in convicting them in spite of the fact that their identity was not proven beyond reasonable doubt. They assert that “the prosecution have miserably failed to show that the two accused, Mendez and Lesula, are the very persons” who committed the robbery with double rape.
Counsel admits the corpus delicti but insists that in the absence of any extrajudicial confession the complicity of the appellants in the crime has not been proven.
Mendez, 31, married and a resident of Barrio Cantumogcad, Loon (previously charged with robbery before the municipal court of Inabanga, Bohol) offered the alibi that when the incident happened he was with his foster-mother, Placida Vistal, at Inabanga.
Lesula, 24, married and a resident of Sitio Handig, Barrio Catagbacan, Loon, testified that he was in his home when the incident took place.
The accused also feebly claimed that they were the victims of a political frameup. Laxity in law enforcement was an issue against the reelectionist mayor of Loon. He sought to pin the crime in question on the accused in order to improve his image.
The trial court disregarded the alibis of the accused, ruled that Rufa and Susana had no ulterior motive for framing up the accused and found that the accused were sufficiently identified. It said:
“The evidence on record shows that the male factors did not wear any mask. They used their flashlights when they ransacked the trunk which was only about one (1) meter from the offended parties. While thus ransacking, they found inside the trunk the big flashlight with three new batteries owned by their old grandparents which the malefactors used in further ransacking the trunk.
“With the use of this big flashlight, the facial features of the malefactors were, therefore, very well lighted up. That the malefactors did not wear any mask is believable because, as admitted by both accused on the witness stand, they did not know personally the offended parties. Hence, they naturally had no fear of being recognized by the inmates of the house that they robbed.
“Moreover, the living room (sala) of the house was well lighted with kerosene lamp (lamparilla) which was placed at the altar. When accused Emerito Mendez sexually assaulted Rufa Sombrio in the living room, it is improbable that the latter, with the kerosene lamp on, could not have clearly and positively identified the face of her sexual assailant which, as to be expected, was only a few inches from her face.
“The same opportunities for observation hold true with Susana Sombrio who categorically declared that the face of accused Paterno Lesula was positively clear to her when the face of the latter was well lighted up when she and Paterno Lesula crossed the lamparilla-lighted living room in going to the bedroom to which she was brought by the said accused and sexually assaulted.”
With respect to Mendez, the trial court observed that he did not tell the chief of police that he was in Barrio Lutao, Inabanga, when he (Mendez) was first apprised that he was charged with robbery with rape. He just kept silent.
We agree with the trial court that the identity of the accused as the perpetrators of the robbery with double rape has been established beyond reasonable doubt. The special complex crime was aggravated by dwelling and nocturnity.
As shown in People vs. Carandang, L-31012, August 15, 1973, 52 SCRA 259, and People vs. Perello, L-33064, January 27, 1982, 111 SCRA 147, the Court has always been divided on the question of whether the robbery with qualified rape should be punished with death or reclusion perpetua or whether article 294 (2) (before it was amended) or article 335 of the Revised Penal lode should be applied.
In this case, for lack of necessary votes, the death penalty cannot be imposed. Therefore, the lower court’s judgment is affirmed.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion Jr., Guerrero, Abad Santos, De Castro, Plana, Escolin, Vasquez and Gutierrez, Jr., JJ., concur. Makasiar, J., Death penalty should be imposed on both appellants. Melencio-Herrera, J., I concur, with the observation that in People vs. Cabural et al. (L-34105) promulgated on February 4, 1983, This Court, by a decisive vote of ten (10) ruled that it is Art. 294(2), not Art. 335 of the Revised Penal Code, that calls for application in the crime of Robbery with Rape. Relova, J., did not take part.