Republic of the Philippines
SUPREME COURT
Manila

NOCON, J.:

It was on March 8, 1985, at about noontime, when Marites Soriano, a seven (7) year old girl and a Grade I student at the Padilla Elementary School at Lingayen, Pangasinan, was walking home after school. The accused, Edgar B. Fernandez, a sixteen (16) year old boy offered Marites Soriano two (2) cashew fruits and led her towards the Colegio of Pangasinan Sur, Lingayen, Pangasinan. The accused then forced her to lie down on the cemented dike as he placed his body over Marites and proceeded to have carnal knowledge with her without the latter's consent. ¹

Thereafter, the accused left while Marites went home crying and bleeding and immediately reported the incident to her parents. From the Sto. Niño Hospital in Lingayen, Marites was brought by her father to the Pangasinan Provincial Hospital at Dagupan City where a medical report was then issued showing that Marites was sexually abused. ²

The incident was reported to the police by Marites' father Eduardo Soriano. But prior thereto, barangay authorities brought a certain Danny Miranda to the house of Marites for the latter to identify if he was the culprit. Danny Miranda is a helper of Municipal Kagawad Jimmy Joves whose house happened to be near the cemented dike where the incident took place and whose short pants and brief were found smeared with blood. Marites however, did not point to Danny Miranda as the offender. ³ At any rate, Danny Miranda's blood smeared short pants and brief were brought to the NBI for examination and the NBI report found Miranda's pants positive for human blood. ⁴

On March 23, 1985, Marites was brought by her father to watch a basketball game at the public plaza of Lingayen. There, Marites saw the accused Edgar B. Fernandez as one of the players and confidently pointed to her father the accused as the one who raped her. The accused was then invited by Barangay Tanod Oscar de los Santos at the police station where he was investigated. A police line-up was conducted and again the accused was pointed to by Marites as the person who raped her. ⁵

We are not convinced by accused-appellant's rationalization. What is decisive and cannot be denied it is his positive identification as the malefactor. ⁶ It is worthwhile mentioning that Marites, a young girl of seven, lost no time in reporting that painful incident to her father and thereafter to the authorities to the extent of even submitting herself to an embarrassing medical examination in her quest for truth and justice. ⁷ The victim never pointed to Danny Miranda as the one who raped her. It would be unnatural and illogical for a seven (7) year old girl to point to another person as the one who raped her when in truth and in fact, he is not. The harrowing and gruesome experience and the pain will always be remembered and felt by the victim and because of this, Marites could not have mistakenly identified the appellant. Not even the threat of death by the rapist had dissuaded her in reporting and denouncing appellant to the authorities as the person who violated her. No improper motive can be ascribed to Marites other than a desire to tell the truth and redress for a terrible wrong inflicted on her. 8

What is irrefutable is that Marites unhesitatingly pointed to appellant as the rapist. ¹⁰

Rape is committed by having carnal knowledge of a woman who is under twelve years of age. ¹¹

Appellant invokes his minority as a privileged mitigating circumstance. At the time of the commission of the offense, appellant was under eighteen (18) years of age. He was exactly sixteen (16) years, three (3) months, and twenty four (24) days old. Evidence shows that appellant he was born on November 13, 1968. ¹² The appellant is entitled to the mitigating circumstance of minority. Under Article 68, par. 2 of the Revised Penal Code, the imposable penalty for the crime of rape shall be that penalty next lower than that prescribed by law, but always in the proper period. ¹³

The penalty for rape is reclusion perpetua. a single indivisible penalty. Considering that the appellant committed a crime of rape while he was under eighteen (18) but over fifteen 15 years of age, he is entitled to the penalty next lower than that prescribed by law, which is reclusion temporal. We apply the Indeterminate Sentence Law to accused-appellant's case because of the established jurisprudence that what is controlling is the penalty actually imposed and not the penalty imposable under the Revised Penal Code. ¹⁴

Appellant cannot avail of Article 192 of PD 603, as amended, of the Child and Youth Welfare Code, for the suspension of his sentence. The said provision applies to those youthful offenders who at the time of the commission of the crime were over nine (9) and under fifteen (15) years of age. Appellant was already above sixteen (16) years of age when the crime of rape, which he no doubt committed, occurred. Hence, such provision does not apply to him. ¹⁵

Footnotes