SECOND DIVISION
G.R. No. 138033
February 22, 2006
RENATO BALEROS, JR., Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
D E C I S I O N
GARCIA, J.:
In this petition for review on certiorari, petitioner Renato
Baleros, Jr. assails and seeks the reversal of the January 13, 1999 decision1
of the Court of Appeals (CA) in CA-G.R. CR No. 17271 as reiterated in its March
31, 1999 resolution2 denying petitioner’s motion for reconsideration.
The assailed decision affirmed an earlier decision of the
Regional Trial Court (RTC) of Manila, Branch 2, in Criminal Case No. 91-101642
finding petitioner Renato Baleros, Jr. y David (CHITO) guilty of attempted rape.3
The accusatory portion of the information4 dated December
17, 1991 charging petitioner with attempted rape reads as follow:
That about 1:50 in the morning or sometime thereafter of 13 December 1991 in
Manila and within the jurisdiction of this Honorable Court, the above-named
accused, by forcefully
covering the face of Martina Lourdes T. Albano with a piece of cloth soaked in
chemical with dizzying effects, did then and there willfully, unlawfully
and feloniously commenced the commission of rape by lying on top of her with the intention to have
carnal knowledge with
her but was unable to perform all the acts of execution by reason of some cause
or accident other than his own spontaneous desistance, said acts being
committed against her will and consent to her damage and prejudice.
Upon arraignment on February 5, 1992, petitioner, assisted by
counsel, pleaded "Not
Guilty."5 Thereafter, trial on the merits ensued.
To prove its case, the prosecution presented thirteen (13) witnesses. Among them
were private complainant Martina
Lourdes Albano (Malou), and her classmates, Joseph Bernard Africa, Rommel
Montes, Renato Alagadan and Christian Alcala. Their testimonies, as
narrated in some detail in the decision of the CA, established the following
facts:
Like most of the tenants of the Celestial Marie Building
(hereafter "Building", …) along A.H. Lacson Street, Sampaloc, Manila,
MALOU, occupying Room 307
with her maid, Marvilou Bebania (Marvilou), was a medical student of the
University of Sto. Tomas [UST] in 1991.
In the evening of December 12, inside Unit 307, MALOU retired at around 10:30. Outside, right in front of her bedroom
door, her maid, Marvilou, slept on a folding bed.
Early
morning of the following day, MALOU was awakened by the smell of chemical on a
piece of cloth pressed on her face. She struggled but could not move. Somebody
was pinning her down on the bed, holding her tightly. She wanted to scream for
help but the hands covering her mouth with cloth wet with chemicals were very
tight (TSN, July 5, 1993, p. 33). Still, MALOU continued fighting off her attacker by
kicking him until at last her right hand got free. With this …the opportunity
presented itself when she was able to grab hold of his sex organ which she then
squeezed.
The man
let her go and MALOU went straight to the bedroom door and roused Marvilou.
xxx. Over the intercom, MALOU
told S/G Ferolin that: "may pumasok sa kuarto ko pinagtangkaan ako"
(Ibid., p. 8). Who it was
she did not, however, know. The only thing she had made out during their
struggle was the feel of her attacker’s clothes and weight. His upper garment
was of cotton material while that at the lower portion felt smooth and
satin-like (Ibid, p. 17). He … was wearing a t-shirt and shorts … Original
Records, p. 355).
To Room
310 of the Building where her classmates Christian Alcala, Bernard Baptista,
Lutgardo Acosta and Rommel Montes were staying, MALOU then proceeded to seek
help. xxx.
It was then when MALOU saw her bed … topsy-turvy. Her nightdress was stained with
blue … (TSN, July 5, 1993, pp. 13-14). Aside from the window with grills which she had originally
left opened, another window inside her bedroom was now open. Her attacker had
fled from her room going through the left bedroom window (Ibid, Answers
to Question number 5; Id), the
one without iron grills which leads to Room 306 of the Building (TSN,
July 5, 1993, p.6).
xxx xxx xxx
Further, MALOU
testified that her relation with CHITO, who was her classmate …, was friendly
until a week prior to the attack. CHITO confided his feelings for her, telling
her: "Gusto kita, mahal kita" (TSN, July 5, 1993, p. 22) and she rejected him. ….
(TSN, July 5, 1993, p. 22).
Meanwhile, according to S/G Ferolin, while he was on duty, CHITO arrived at the
Building at 1:30 in the early morning of December 13, 1991, wearing a white
t-shirt with “‘…a marking on the front of the T-shirt T M and a Greek letter
(sic) ΣΦ’ and below the quoted letters the word ‘1946’ ‘UST Medicine and
Surgery’” (TSN, October 9, 1992, p. 9) and black shorts with the brand name “Adidas”
(TSN, October 16, 1992, p.7) and
requested permission to go up to Room 306. This Unit was being leased by
Ansbert Co and at that time when CHITO was asking permission to enter, only
Joseph Bernard Africa was in the room.
He
asked CHITO to produce the required written authorization and when CHITO could
not, S/G Ferolin initially refused [but later, relented] …. S/G Ferolin
made the following entry in the security guard’s logbook …:
"0130H Baleros Renato Jr. is a visitor of Ansbert Co
who has not have (sic) a Request letter from our tenant of Unit #-306 Ansbert,
but still I let him inter (sic) for the reason that he will be our tenant this coming summer
break as he said so I let him sign it here
(Sgd.) Baleros Renato Jr."
(Exhibit "A-2")
That CHITO arrived at Room 306 at 1:30 A.M. of December 13,
1991 was corroborated by Joseph Bernard Africa (Joseph), ….
xxx xxx xxx
Joseph
was already inside Room 306 at 9 o’clock in the evening of December 12, 1991.
xxx by the time CHITO’s knocking on the door woke him up, …. He was able to fix
the time of CHITO’s arrival at 1:30 A.M. because he glanced at the alarm clock
beside the bed when he was awakened by the knock at the door ….
Joseph noticed that CHITO was wearing dark-colored shorts
and white T-shirt (Ibid., p. 23) when he let the latter in. …. It was at around 3 o’clock in
the morning of December 13, 1991 when he woke up again later to the sound of
knocking at the door, this time, by Bernard Baptista (Bernard), ….
xxx. With Bernard, Joseph then went to MALOU’s room and
thereat was shown by Bernard the open window through which the intruder
supposedly passed.
xxx xxx xxx
Later,
at about 6 to 6:30 in the morning of December 13, 1991, Joseph was finally able
to talk to CHITO …. He mentioned to the latter that something had happened and
that they were not being allowed to get out of the building. Joseph also told
CHITO to follow him to Room 310.
CHITO
did just that. He followed after Joseph to Unit 310, carrying his gray bag.
xxx. None was in Room 310 so Joseph went to their yet another classmate, Renato
Alagadan at Room 401 to see if the others were there. xxx.
People
from the CIS came by before 8 o’clock that same morning …. They likewise
invited CHITO and Joseph to go with them to Camp Crame where the two (2) were
questioned ….
An
occupant of Room 310 … Christian Alcala (Christian) recalled in Court that in
the afternoon of December 13, 1991, after their 3:30 class, he and his
roommates, Bernard Baptista and Lutgardo Acosta (Gary) were called to the
Building and were asked by the CIS people to look for anything not belonging to
them in their Unit. While they were outside Room 310 talking with the
authorities, Rommel Montes (Loyloy), another roommate of his, went inside to
search the Unit. Loyloy found (TSN, January 12, 1993, p. 6) a gray "Khumbella" bag
cloth type (Ibid, pp. 44-45) from inside their unit which they did not know was there and surrender
the same to the investigators. When he saw the gray bag, Christian knew right
away that it belonged to CHITO (Ibid, p. 55) as he had seen the latter usually bringing it to
school inside the classroom (Ibid, p. 45).
In their presence, the CIS opened the bag and pulled out its contents, among
others, a white t-shirt with a Taunu (sic) Sigma Phi sign (Ibid, p. 7), a Black
Adidas short pants, a handkerchief , three (3) white T-shirts, an underwear,
and socks (Ibid).
Christian
recognized the t-shirt (Exhibit "D-4"), the Adidas short pants
(Exhibit "D-5"), and the handkerchief (Exhibit "D-3) to be
CHITO’s because CHITO had lent the very same one to him …. The t-shirt with
CHITO’s fraternity symbol, CHITO used to wear on weekends, and the handkerchief
he saw CHITO used at least once in December.
That CHITO left his bag inside Room 310 in the morning of
December 13, 1991, was what consisted mainly of Renato R. Alagadan’s testimony.
xxx xxx xxx.
The colored gray bag had a handle and a strap, was elongated
to about 11/4 feet and appeared to be full but was closed with a zipper when
Renato saw it then (Ibid, pp. 19-20). At that time Christian, Gary, Bernard,
and Renato went back to Room 310 at around 3 to 4 o’clock that afternoon along
with some CIS agents, they saw the bag at the same place inside the bedroom
where Renato had seen CHITO leave it. Not until later that night at past 9
o’clock in Camp Crame, however, did Renato know what the contents of the bag
were.
xxx xxx xxx.
The forensic Chemist, Leslie Chambers, of the Philippine
National Police Crime Laboratory in Camp Crame, having acted in response to the
written request of PNP Superintendent Lucas M. Managuelod dated December 13,
1991, (Exhibit "C"; Original Records, p. 109.) conducted laboratory
examination on the specimen collated and submitted…. Her Chemistry Report No.
C-487-91 (Exhibit "E"; Ibid., p. 112) reads in part, thus:
"SPECIMEN SUBMITTED:
xxx xxx xxx:
1) One (1) small white plastic bag marked ‘UNIMART’ with the
following:
xxx xxx xxx
Exh ‘C’ – One (1) night dress colored salmon pink.
2) One (1) small white pl astic bag marked ‘JONAS’ with the
following:
Exh. ‘D’ – One (1) printed handkerchief.
Exh. ‘E’ – One (1) white T-shirt marked ‘TMZI’.
Exh. ‘F’ – One (1) black short (sic) marked ‘ADIDAS’.
PURPOSE OF LABORATORY EXAMINATION:
To determine the presence of volatime (sic), non-volatile
and/or metallic poison on the above stated specimens.
FINDINGS:
Toxicological examination conducted on the above stated
specimens gave the following results:
Exhs. ‘C’ and ‘D’ – POSITIVE to the test for chloroform, a
volatile poison.
Exhs. ‘A’, ‘B’, ‘E’ and ‘F’ are insufficient for further
analysis.
CONCLUSION:
Exhs. ‘C’ and ‘D’ contain chloroform, a volatile
poison."6 (Words in bracket added)
For its part, the defense presented, as its main witness,
the petitioner himself. He denied committing the crime imputed to him or making
at any time amorous advances on Malou. Unfolding a different version of the
incident, the defense sought to establish the following, as culled from the
same decision of the appellate court:
In December of 1991, CHITO was a medical student of … (UST).
With Robert Chan and Alberto Leonardo, he was likewise a member of the Tau Sigma Phi Fraternity
…. MALOU, …, was known to him being also a medical student at the UST at the
time.
From Room 306 of the Celestial Marie Building …, CHITO,
wearing the prescribed barong tagalog over dark pants and leather shoes,
arrived at their Fraternity house located at … Dos Castillas, Sampaloc, Manila
at about 7 o’clock in the evening of December 12, 1991. He was included in the
entourage of some fifty (50) fraternity members scheduled for a Christmas
gathering at the house of their senior fraternity brother, Dr. Jose Duran, at
No. 3 John Street, North Greenhills, San Juan. xxx.
The party was conducted at the garden beside [the] swimming
pool …. Soon after, … the four (4) presidential nominees of the Fraternity,
CHITO included, were being dunked one by one into the pool. xxx.
xxx CHITO had anticipated his turn … and was thus wearing
his t-shirt and long pants when he was dunked. Perla Duran, …, offered each …
dry clothes to change into and CHITO put on the white t-shirt with the
Fraternity’s symbol and a pair of black shorts with stripes. xxx .
Again riding on Alberto’s car and wearing "barong
tagalog over a white t-shirt with the symbol TAU Sigma Phi, black short pants
with stripe, socks and shoes" (TSN, April 25, 1994, p. 15), CHITO left the party with Robert
Chan and Alberto at more or less past 1 A.M. of December 13, 1991 and proceeded
to the Building which they reached at about 1:30 A.M. (Ibid., p. 19). He had left his gray traveling
bag containing "white t-shirt, sando, underwear, socks, and toothbrush
(Ibid., pp. 17-18) at room 306 in the afternoon of the previous day ….
At the gate of the Building, CHITO knocked and …, S/G
Ferolin, looking at his watch, approached. Because of this, CHITO also looked
at his own watch and saw that the time was 1:30 (Ibid., p. 26). S/G Ferolin
initially refused CHITO entry …. xxx.
S/G Ferolin called Unit 306 …. xxx. When S/G Ferolin finally
let him in, already about ten (10) minutes had lapsed since CHITO first arrived
(Ibid., p. 25).
CHITO
went up the floor, found the key left for him by Joseph behind the opened
jalousie window and for five (5) minutes vainly tried to open the door until
Rommel Montes, … approached him and even commented: "Okey ang suot mo ha,
di mo mabuksan ang pinto (Ibid., pp. 26-29). Rommel tried to open the door of
Unit 306 … but was likewise unsuccessful. CHITO then decided to just call out
to Joseph while knocking at the door.
It took
another (5) minutes of calling out and knocking before Joseph, …, at last answered
the door. Telling him, "Ikaw na ang bahala diyan" Joseph immediately
turned his back on CHITO and went inside the bedroom. CHITO , …changed to a
thinner shirt and went to bed. He still had on the same short pants given by
Perla Duran from the fraternity party (TSN, June 16, 1994, p. 20).
At 6
o’clock in the morning of December 13, 1991, CHITO woke up …. He was already in
his school uniform when, around 6:30 A.M, Joseph came to the room not yet
dressed up. He asked the latter why this was so and, without elaborating on it,
Joseph told him that something had happened and to just go to Room 310 which
CHITO did.
At Room
310, CHITO was told by Rommel Montes that somebody, whom MALOU was not able to
identify, went to the room of MALOU and tried to rape her (TSN, April
25, 1994, p. 36). xxx.
Joseph
told him that the security guard was not letting anybody out of the Building ….
When two (2) CIS men came to the unit asking for Renato Baleros, CHITO
presented himself. Congressman Rodolfo B. Albano, father of MALOU, then asked
him for the key to Room 306….
xxx xxx xxx
The CIS men looked inside the bedroom and on the windows.
Joseph was told to dress up and the two (2) of them, CHITO and Joseph, were
brought to Camp Crame.
When they arrived at Camp Crame …, Col. Managuelod asked
Joseph inside his room and talked to him for 30 minutes. xxx. No one
interviewed CHITO to ask his side.
xxx xxx xxx
Both CHITO and Joseph were taken to Prosecutor Abesamis who
later instructed them to undergo physical examination at the Camp Crame
Hospital ….. At the hospital, … CHITO and Joseph were physically examined by a
certain Dr. de Guzman who told them to strip ….
xxx xxx xxx
CHITO had left his gray bag containing, among others, the
black striped short pants lent to him by Perla Duran (Exhibit "8-A",
Original Records, p. 345), inside Room 310 at more/less 6:30 to 7 o’clock in
the morning of December 13, 1991. The next time that he saw it was between 8 to
9 P.M. when he and Joseph were brought before Fiscal Abesamis for inquest. One
of the CIS agents had taken it there and it was not opened up in his presence
but the contents of the bag were already laid out on the table of Fiscal
Abesamis who, however, made no effort to ask CHITO if the items thereat were
his.
The black Adidas short pants purportedly found in the bag,
CHITO denied putting in his gray bag which he had left at Room 306 in the early
evening of December 12, 1991 before going to the fraternity house. He likewise
disavowed placing said black Adidas short pants in his gray bag when he
returned to the apartment at past 1:00 o’clock in the early morning of December
13, 1991 (TSN, June 16, 1994, p. 24), nor when he dressed up at about 6 o’clock
in the morning to go to school and brought his gray bag to Room 310 (Ibid. 25).
In fact, at any time on December 13, 1991, he was not aware that his gray bag
ever contained any black short Adidas pants (Ibid). He only found out for the
first time that the black Adidas short pants was alluded to be among the items
inside his gray bag late in the afternoon, when he was in Camp Crame.
Also taking the witness stand for the defense were
petitioner’s fraternity brothers, Alberto Leonardo and Robert Chan, who both
testified being with CHITO in the December 12, 1991 party held in Dr. Duran’s
place at Greenhills, riding on the same car going to and coming from the party
and dropping the petitioner off the Celestial Marie building after the party. Both were one in saying that
CHITO was wearing a barong tagalog, with t-shirt inside, with short pants and
leather shoes at the time they parted after the party.7 Rommel Montes, a tenant of Room
310 of the said building, also testified seeing CHITO between the hours of 1:30
and 2:00 A.M. of December 13, 1991 trying to open the door of Room 306 while
clad in dark short pants and white barong tagalog.
On the
other hand, Perla Duran confirmed lending the petitioner the pair of short
pants with stripes after the dunking party held in her father’s house.8
Presented as defense expert witness was Carmelita Vargas, a forensic chemistry instructor whose
actual demonstration in open court showed that chloroform, being volatile,
evaporates in thirty (30) seconds without tearing nor staining the cloth on
which it is applied.9
On December 14, 1994, the trial court rendered its
decision10 convicting petitioner of attempted rape and accordingly sentencing him, thus:
WHEREFORE, under cool reflection and prescinding from the
foregoing, the Court finds the accused Renato D. Baleros, Jr., alias
"Chito", guilty beyond reasonable doubt of the crime of attempted
rape as principal and as charged in the information and hereby sentences him to
suffer an imprisonment ranging from FOUR (4) YEARS, TWO (2) MONTHS AND ONE (1)
DAY of Prision Correctional, as Minimum to TEN (10) YEARS of Prision Mayor as
Maximum, with all the accessory penalties provided by law, and for the accused
to pay the offended party Martina Lourdes T. Albano, the sum of P50,000.00 by
way of Moral and exemplary damages, plus reasonable Attorney’s fees of P30,000.00,
without subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Aggrieved, petitioner went to the CA whereat his appellate
recourse was docketed as CA-G.R. CR No. 17271.
As stated at the threshold hereof, the CA, in its assailed
Decision dated January 13, 1999, affirmed the trial court’s judgment of
conviction, to wit:
WHEREFORE, finding no basis in fact and in law to deviate
from the findings of the court a quo, the decision appealed from is hereby AFFIRMED in toto. Costs
against appellant.
SO ORDERED.11
Petitioner moved for reconsideration, but his motion was
denied by the CA in its equally assailed resolution of March 31, 1999.12
Petitioner is now with this Court, on the contention that
the CA erred -
1. In not finding that it is improbable for petitioner to
have committed the attempted rape imputed to him, absent sufficient, competent
and convincing evidence to prove the offense charged.
2. In convicting petitioner of attempted rape on the basis
merely of circumstantial evidence since the prosecution failed to satisfy all
the requisites for conviction based thereon.
3. In not finding that the circumstances it relied on to
convict the petitioner are unreliable, inconclusive and contradictory.
4. In not finding that proof of motive is miserably wanting
in his case.
5. In awarding damages in favor of the complainant despite
the fact that the award was improper and unjustified absent any evidence to
prove the same.
6. In failing to appreciate in his favor the constitutional
presumption of innocence and that moral certainty has not been met, hence, he
should be acquitted on the ground that the offense charged against him has not
been proved beyond reasonable doubt.
Otherwise stated, the basic issue in this case turns on the
question on whether or not the CA erred in affirming the ruling of the RTC
finding petitioner guilty beyond reasonable doubt of the crime of attempted
rape.
After a careful review of the facts and evidence on record
in the light of applicable jurisprudence, the Court is disposed to rule for
petitioner’s acquittal, but not necessarily because there is no direct evidence
pointing to him as the intruder holding a chemical-soaked cloth who pinned
Malou down on the bed in the early morning of December 13, 1991.
Positive identification pertains essentially to proof of
identity and not per se to that of being an eyewitness to the very act of
commission of the crime. There are two types of positive identification. A
witness may identify a suspect or accused as the offender as an eyewitness to
the very act of the commission of the crime. This constitutes direct evidence.
There may, however, be instances where, although a witness may not have
actually witnessed the very act of commission of a crime, he may still be able
to positively identify a suspect or accused as the perpetrator of a crime as
when, for instance, the latter is the person or one of the persons last seen
with the victim immediately before and right after the commission of the crime.
This is the second type of positive identification, which forms part of
circumstantial evidence.13 In the absence of direct evidence, the prosecution
may resort to adducing circumstantial evidence to discharge its burden. Crimes
are usually committed in secret and under condition where concealment is highly
probable. If direct evidence is insisted under all circumstances, the
prosecution of vicious felons who committed heinous crimes in secret or
secluded places will be hard, if not well-nigh impossible, to prove.14
Section 4 of Rule 133 of the Rules of Court provides the
conditions when circumstantial evidence may be sufficient for conviction. The
provision reads:
Sec. 4. Circumstantial evidence, when sufficient –
Circumstantial evidence is sufficient for conviction if –
a) There is more than one circumstance;
b) The facts from which the inferences are derived are
proven; and
c) The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.
In the present case, the positive identification of the
petitioner forms part of circumstantial evidence, which, when taken together
with the other pieces of evidence constituting an unbroken chain, leads to only
fair and reasonable conclusion, which is that petitioner was the intruder in question.
We quote with approval the CA’s finding of the
circumstantial evidence that led to the identity of the petitioner as such
intruder:
Chito was in the Building when the attack on MALOU took
place. He had access to the room of MALOU as Room 307 where he slept the night
over had a window which allowed ingress and egress to Room 306 where MALOU
stayed. Not only the Building security guard, S/G Ferolin, but Joseph Bernard
Africa as well confirmed that CHITO was wearing a black "Adidas" shorts
and fraternity T-shirt when he arrived at the Building/Unit 307 at 1:30 in the
morning of December 13, 1991. Though it was dark during their struggle, MALOU
had made out the feel of her intruder’s apparel to be something made of cotton
material on top and shorts that felt satin-smooth on the bottom.
From CHITO’s bag which was found inside Room 310 at the very
spot where witness Renato Alagadan saw CHITO leave it, were discovered the most
incriminating evidence: the handkerchief stained with blue and wet with some kind
of chemicals; a black "Adidas" satin short pants; and a white
fraternity T-shirt, also stained with blue. A different witness, this time,
Christian Alcala, identified these garments as belonging to CHITO. As it turned
out, laboratory examination on these items and on the beddings and clothes worn
by MALOU during the incident revealed
that the handkerchief and MALOU’s night dress both contained chloroform, a
volatile poison which causes first degree burn exactly like what MALOU
sustained on that part of her face where the chemical-soaked cloth had been
pressed.
This brings the Court to the issue on whether the evidence
adduced by the prosecution has established beyond reasonable doubt the guilt of
the petitioner for the crime of attempted rape.
The Solicitor General maintained that petitioner, by
pressing on Malou’s face the piece of cloth soaked in chemical while holding
her body tightly under the weight of his own, had commenced the performance of
an act indicative of an intent or attempt to rape the victim. It is argued that
petitioner’s actuation thus described is an overt act contemplated under the
law, for there can not be any other logical conclusion other than that the
petitioner intended to ravish Malou after he attempted to put her to an induced
sleep. The Solicitor General, echoing what the CA said, adds that if
petitioner’s intention was otherwise, he would not have lain on top of the
victim.15
Under
Article 335 of the Revised Penal Code, rape is committed by a man who has
carnal knowledge or intercourse with 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. Under Article 6, in relation to the
aforementioned article of the same code, rape is attempted when the offender
commences the commission of rape directly by overt acts and does not perform
all the acts of execution which should produce the crime of rape by reason of
some cause or accident other than his own spontaneous desistance.16
Expounding on the nature of an attempted felony, the Court,
speaking thru Justice Claro M. Recto in People vs. Lamahang,17 stated that
"the attempt which the Penal Code punishes is that which has a logical
connection to a particular, concrete offense; that which is the beginning of
the execution of the offense by overt acts of the perpetrator, leading directly
to its realization and consummation." Absent the unavoidable connection,
like the logical and natural relation of the cause and its effect, as where the
purpose of the offender in performing an act is not certain, meaning the nature
of the act in relation to its objective is ambiguous, then what obtains is an
attempt to commit an indeterminate offense, which is not a juridical fact from
the standpoint of the Penal Code.18
There
is absolutely no dispute about the absence of sexual intercourse or carnal
knowledge in the present case. The next question that thus comes to the fore is
whether or not the act of the petitioner, i.e., the pressing of a
chemical-soaked cloth while on top of Malou, constitutes an overt act of rape.
Overt
or external act has been defined as some physical activity or deed, indicating
the intention to commit a particular crime, more than a mere planning or
preparation, which if carried out to its complete termination following its
natural course, without being frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will logically and necessarily ripen
into a concrete offense.19
Harmonizing the above definition to the facts of this case,
it would be too strained to construe petitioner's act of pressing a
chemical-soaked cloth in the mouth of Malou which would induce her to sleep as
an overt act that will logically and necessarily ripen into rape. As it were,
petitioner did not commence at all the performance of any act indicative of an
intent or attempt to rape Malou. It cannot be overemphasized that petitioner was fully clothed and
that there was no attempt on his part to undress Malou, let alone touch her
private part. For what reason petitioner wanted the complainant
unconscious, if that was really his immediate intention, is anybody’s guess.
The CA maintained that if the petitioner had no intention to rape, he would not
have lain on top of the complainant. Plodding on, the appellate court even
anticipated the next step that the petitioner would have taken if the victim
had been rendered unconscious. Wrote the CA:
The shedding of the clothes, both of the attacker and his
victim, will have to come later. His sexual organ is not yet exposed because
his intended victim is still struggling. Where the intended victim is an
educated woman already mature in age, it is very unlikely that a rapist would
be in his naked glory before even starting his attack on her. He has to make
her lose her guard first, or as in this case, her unconsciousness.20
At bottom then, the appellate court indulges in plain
speculation, a practice disfavored under the rule on evidence in criminal
cases. For, mere speculations and probabilities cannot substitute for proof
required to establish the guilt of an accused beyond reasonable doubt.21
In Perez vs. Court of Appeals,22 the Court acquitted therein
petitioner of the crime of attempted rape, pointing out that:
xxx. In the crime of rape, penetration is an essential act
of execution to produce the felony. Thus, for there to be an attempted rape,
the accused must have commenced the act of penetrating his sexual organ to the
vagina of the victim but for some cause or accident other than his own
spontaneous desistance, the penetration, however, slight, is not completed.
xxx xxx xxx
Petitioner’s act of lying on top of the complainant,
embracing and kissing her, mashing her breasts, inserting his hand inside her
panty and touching her sexual organ, while admittedly obscene and detestable
acts, do not constitute attempted rape absent any showing that petitioner
actually commenced to force his penis into the complainant’s sexual organ. xxx.
Likewise in People vs. Pancho,23 the Court held:
xxx, appellant was merely holding complainant’s feet when
his Tito Onio arrived at the alleged locus criminis. Thus, it would be
stretching to the extreme our credulity if we were to conclude that mere
holding of the feet is attempted rape.
Lest it be misunderstood, the Court is not saying that
petitioner is innocent, under the premises, of any wrongdoing whatsoever. The
information filed against petitioner contained an allegation that he forcefully
covered the face of Malou with a piece of cloth soaked in chemical. And during
the trial, Malou testified about the pressing against her face of the
chemical-soaked cloth and having struggled after petitioner held her tightly
and pinned her down. Verily,
while the series of acts committed by the petitioner do not determine attempted
rape, as earlier discussed, they constitute unjust vexation punishable as light coercion under the
second paragraph of Article 287 of the Revised Penal Code. In the
context of the constitutional provision assuring an accused of a crime the
right to be informed of the nature and cause of the accusation,24 it cannot be
said that petitioner was kept in the dark of the inculpatory acts for which he
was proceeded against. To be sure, the information against petitioner contains
sufficient details to enable him to make his defense. As aptly observed by then
Justice Ramon C. Aquino, there is no need to allege malice, restraint or
compulsion in an information for unjust vexation. As it were, unjust vexation exists even without the
element of restraint or compulsion for the reason that this term is broad
enough to include any human conduct which, although not productive of some
physical or material harm, would unjustly annoy or irritate an innocent person.25
The paramount question is whether the offender’s act causes annoyance,
irritation, torment, distress or disturbance to the mind of the person to whom
it is directed.26 That
Malou, after the incident in question, cried while relating to her classmates
what she perceived to be a sexual attack and the fact that she filed a case for
attempted rape proved beyond cavil that she was disturbed, if not distressed by
the acts of petitioner.
The penalty for coercion falling under the second paragraph
of Article 287 of the Revised Penal Code is arresto menor or a fine ranging
from P5.00 to P200.00 or both.
WHEREFORE, the assailed Decision of the Court of Appeals affirming that of the
Regional Trial Court of Manila, is hereby REVERSED and SET ASIDE and a new one
entered ACQUITTING petitioner Renato D. Baleros, Jr. of the charge for
attempted rape. Petitioner, however, is adjudged GUILTY of light coercion and
is accordingly sentenced to 30 days of arresto menor and to pay a fine of
P200.00, with the accessory penalties thereof and to pay the costs.
SO ORDERED.
