SECOND DIVISION

[G.R. No. 188979. September 5, 2012.]

PEOPLE OF THE PHILIPPINES, appellee, vs. CHRISTOPHER

PAREJA y VELASCO, appellant.

DECISION

BRION, J : p

This is an appeal from the June 15, 2009 decision 1 of the Court of Appeals
(CA) in CA-G.R. CR HC No. 02759. The CA affirmed the February 22, 2007
decision 2 of the Regional Trial Court (RTC), Branch 209, Mandaluyong City,
finding appellant Christopher Pareja guilty beyond reasonable doubt of the
crime of rape and sentencing him to suffer the penalty of reclusion perpetua.

THE CASE

The prosecution charged the appellant before the RTC with the crime of
rape under an Amended Information that reads:
That on or about the 16th day of June 2003, in the City of
Mandaluyong, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully,
unlawfully and feloniously lie and have carnal knowledge of [AAA], 3 13
years of age, sister of the common law spouse of accused, against her
will and consent, thus debasing and/or demeaning the intrinsic worth
and dignity of the victim thereby prejudicing her normal development
as a child. 4

The evidence for the prosecution disclosed that at around 3:30 a.m. of
June 16, 2003, AAA was sleeping beside her two-year old nephew, BBB, on the
floor of her sister's room, when the appellant hugged her and kissed her nape
and neck. 5 AAA cried, but the appellant covered her and BBB with a blanket. 6
The appellant removed AAA's clothes, short pants, and underwear; he then
took off his short pants and briefs. 7 The appellant went on top of AAA, and held
her hands. AAA resisted, but the appellant parted her legs using his own legs,
and then tried to insert his penis into her vagina. 8 The appellant stopped when
AAA's cry got louder; AAA kicked the appellant's upper thigh as the latter was
about to stand up. The appellant put his clothes back on, and threatened to kill
AAA if she disclosed the incident to anyone. Immediately after, the appellant
left the room. 9 AAA covered herself with a blanket and cried. 10
At around 6:00 a.m. of the same day, AAA's brother, CCC, went to her
room and asked her why she was lying on the floor and crying. AAA did not
answer, and instead hurled invectives at CCC. 11 AAA went to the house of her
other brother, but the latter was not in his house. AAA proceeded to the house
of her older sister, DDD, at Block 19, Welfareville Compound, and narrated to
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 her what had happened. Afterwards, AAA and her two (2) siblings went to the
Women and Children's Desk of the Mandaluyong City Police Station and
reported the incident. 12 SacTAC

For his defense, the appellant declared on the witness stand that he
hauled "filling materials" at his house, located at Block 38, Fabella Compound,
on the evening of June 15, 2003. At around 10:00 p.m., he went to his room and
slept. 13 On the next day, the appellant, accompanied by his mother and
brother-in-law, went to the municipal hall to ask for financial assistance for his
wife who was confined in the hospital. Upon arrival at the hospital, the doctor
told him that his wife needed blood. Immediately after, the appellant and his
companions went to Pasig City to find blood donors. 14
On the evening of June 16, 2003, and while the appellant was folding the
clothes of his son, two policemen entered his house and informed him that a
complaint for attempted rape had been filed against him. The police brought
him to the Criminal Investigation and Detection Group, forced him to admit the
crime, mauled him, and then placed him in a detention cell. 15 The appellant
added that he filed a complaint before the Office of the Ombudsman against
the police officers who beat him up. 16
The RTC convicted the appellant of rape in its decision of February 22,
2007, under the following terms:
WHEREFORE, the Court finds accused CHRISTOPHER PAREJA y
VELASCO GUILTY beyond reasonable doubt of the crime of RAPE and
hereby sentences him as he is hereby sentenced to suffer the penalty
of reclusion perpetua; and to indemnify the victim, [AAA,] the amount
of P50,000.00 as moral damages and P50,000.00 as civil indemnity. 17

The CA, in its decision dated June 15, 2009, affirmed the RTC decision. It
explained that a slight penetration of the labia by the male organ is sufficient to
constitute rape, and held that a slight penetration took place when the
appellant's penis touched AAA's vagina as he was trying to insert it.
The appellate court further ruled that the presence of people in the other
room did not make it impossible for the appellant to have raped the victim,
because lust is no respecter of time and place. It also held that the victim's lack
of tenacity in resisting the appellant's sexual aggression did not amount to
consent or voluntary submission to the criminal act. 18
In his brief, 19 the appellant argued that the lower courts erred in
convicting him for the crime of rape, as the prosecution failed to prove even the
slightest penetration of his penis into the victim's vagina. He added that the
victim's testimony was incredible and contrary to human experience.
THE COURT'S RULING
We find that the prosecution failed to prove the appellant's guilt beyond
reasonable doubt of the crime of consummated rape. We convict him instead of
attempted rape, as the evidence on record shows the presence of all the
elements of this crime. DSCIEa

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 Carnal Knowledge Not Proven With
Moral Certainty
By definition, rape is committed by having carnal knowledge of a woman
with the use of force, threat or intimidation, or when she is deprived of reason
or otherwise unconscious, or when she is under 12 years of age or is demented.
20 "Carnal knowledge is defined as the act of a man having sexual intercourse

or sexual bodily connections with a woman." 21 Carnal knowledge of the victim

by the accused must be proven beyond reasonable doubt, considering that it is
the central element in the crime of rape. 22
In her testimony of February 9, 2004, AAA recounted the alleged rape, as
follows:
FISCAL TRONCO:

Q: You said that the three of you then was (sic) sleeping on the
floor, what is it that happened on that particular day and time
that is unusual?

A: It was like somebody was embracing me or hugging me, ma'am.

Q: When you felt that some (sic) is embracing and hugging you,
what did you [do]?

A: I didn't mind it because I thought that the person beside me just

moved and when he made the movement, it's like that I was
embraced, ma'am.
Q: Whom are you referring to?

A: My brother-in-law, ma'am.

Q: And after that, what else happened, if any, [AAA]?

A: Before that happened, my nephew cried and so I picked him up
and put him on my chest and after a while[,] I slept again and
brought him down again and then "dumapa po ako" and I felt
that somebody was kissing my nape, ma'am.
Q: Were you able to see who was that somebody kissing your
nape?
A: When I tried to evade, I looked on my side where the room was
not that dark that I could not see the person and so, I saw that it
was my brother-in-law, ma'am.
xxx xxx xxx

Q: When you saw that it was your brother-in-law kissing your nape
while you were on a prone position, what else happened, if any?

A: He kissed my neck, ma'am. DaHSIT

Q: What was your position while he was kissing your neck?

A: I was on my side at that time and I was also crying, ma'am.

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 xxx xxx xxx
Q: Why were you crying at that time while he was kissing your
neck?
A: I was afraid of what will happen next, ma'am.

Q: Aside from that incident that he was kissing your neck, was
there any other previous incident that happened?

A: Yes, ma'am.
xxx xxx xxx
Q: What incident was that?

A: At that time, my brother-in-law covered me and my nephew with

a blanket and he tried to get my clothes off, ma'am.

Q: When did this happen, [AAA]?

A: Also on said date, ma'am.

Q: You said that he covered you and your nephew with a blanket
and then taking (sic) off your clothes?
A: Yes, ma'am.

xxx xxx xxx

Q: Was he able to take off your clothes?

A: Yes, ma'am.
Q: What particular clothing was he able to take off?

A: My short pants and underwear, ma'am.

Q: While he was taking off your short pants and your underwear,
what did you do, if any?

A: I tried to fight him off, ma'am.

xxx xxx xxx

Q: You said that he was trying to take off your clothes and

undergarments, what was your position at that time?

A: I was lying down, ma'am.

Q: What about him? HAISEa

A: He was on my lap, ma'am.

xxx xxx xxx

Q: You said that you saw him take off his short pants?

A: Yes, ma'am.
xxx xxx xxx

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 Q: Did he also take off his brief?
A: Yes, ma'am.
xxx xxx xxx

Q: And after that what happened, [AAA]?

A: After removing his undergarments, he suddenly brought his
body on top of me and he held my hands. At that time I was
crying and still resisting and then he was trying to get my legs
apart. I was still resisting at that time, and at some point in time I
felt weak and he was able to part my legs, ma'am.
Q: Could you please tell us how did (sic) he able to part your legs?

A: He did that with his legs while he was holding my hands, ma'am.
Q: And when he was able to part your legs, what happened next?

A: He tried to insert his sexual organ but he was not able to

do so, ma'am.

Q: How did you know that he was trying to insert his sexual
organ?
A: "Naidikit po niya sa ari ko."
Q: Which part of your body was he able to touch his sexual
organ? (sic)

A: On my sexual organ, ma'am . TCHcAE

xxx xxx xxx

Q: You mentioned earlier that he was not able to penetrate

your private part, [AAA]?

A: Yes, ma'am.
Q: So, what happened after that?
A: I cried and then while I was resisting, I hit my wrist on the wall
and my wrist was "nagasgas," ma'am.
xxx xxx xxx

Q: And were you able to successfully resist?

A: Yes, ma'am, I was able to kicked (sic) his upper thigh, ma'am. 23
(italics supplied; emphasis ours)
From the foregoing, we find it clear that the appellant's penis did not
penetrate, but merely 'touched' (i.e., "naidikit"), AAA's private part. In fact, the
victim confirmed on cross-examination that the appellant did not
succeed in inserting his penis into her vagina. Significantly, AAA's
Sinumpaang Salaysay 24 also disclosed that the appellant was holding the
victim's hand when he was trying to insert his penis in her vagina. This
circumstance — coupled with the victim's declaration that she was resisting the
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 appellant's attempt to insert his penis into her vagina — makes penile
penetration highly difficult, if not improbable. Significantly, nothing in the
records supports the CA's conclusion that the appellant's penis penetrated,
however slightly, the victim's female organ.

Did the touching by the appellant's penis of the victim's private part
amount to carnal knowledge such that the appellant should be held guilty of
consummated rape? SDEITC

In People v. Campuhan, 25 the Court laid down the parameters of genital

contact in rape cases, thus:
Thus, touching when applied to rape cases does not simply mean
mere epidermal contact, stroking or grazing of organs, a slight brush or
a scrape of the penis on the external layer of the victim's vagina, or the
mons pubis, as in this case. There must be sufficient and convincing
proof that the penis indeed touched the labias or slid into the female
organ, and not merely stroked the external surface thereof, for an
accused to be convicted of consummated rape. As the labias, which are
required to be "touched" by the penis, are by their natural situs or
location beneath the mons pubis or the vaginal surface, to touch them
with the penis is to attain some degree of penetration beneath the
surface, hence, the conclusion that touching the labia majora or the
labia minora of the pudendum constitutes consummated rape
The pudendum or vulva is the collective term for the female
genital organs that are visible in the perineal area, e.g., mons pubis,
labia majora, labia minora, the hymen, the clitoris, the vaginal orifice,
etc. The mons pubis is the rounded eminence that becomes hairy after
puberty, and is instantly visible within the surface. The next layer is the
labia majora or the outer lips of the female organ composed of the
outer convex surface and the inner surface. The skin of the outer
convex surface is covered with hair follicles and is pigmented, while
the inner surface is a thin skin which does not have any hair but has
many sebaceous glands. Directly beneath the labia majora is the labia
minora. Jurisprudence dictates that the labia majora must be entered
for rape to be consummated, and not merely for the penis to stroke the
surface of the female organ. Thus, a grazing of the surface of the
female organ or touching the mons pubis of the pudendum is not
sufficient to constitute consummated rape. Absent any showing of the
slightest penetration of the female organ, i.e., touching of either labia
of the pudendum by the penis, there can be no consummated rape; at
most, it can only be attempted rape, if not acts of lasciviousness. 26
(italics supplied)

Simply put, "rape is consummated by the slightest penile penetration of

the labia majora or pudendum of the female organ." 27 Without any showing of
such penetration, there can be no consummated rape; at most, it can only be
attempted rape [or] acts of lasciviousness." 28 HTIEaS

As earlier discussed, the prosecution failed to present sufficient and

convincing evidence to establish the required penile penetration. AAA's
testimony did not establish that the appellant's penis touched the labias or slid
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 into her private part. Aside from AAA's testimony, no other evidence on record,
such as a medico-legal report, could confirm whether there indeed had been
penetration, however slight, of the victim's labias. In the absence of testimonial
or physical evidence to establish penile penetration, the appellant cannot be
convicted of consummated rape.
Article 6 of the Revised Penal Code, as amended, states that there is an
attempt when the offender commenced the commission of the crime directly by
overt acts but does not perform all the acts of execution by reason of some
cause or accident other than his own spontaneous desistance. In People v.
Publico, 29 we ruled that when the "touching" of the vagina by the penis
is coupled with the intent to penetrate, attempted rape is committed;
otherwise, the crime committed is merely acts of lasciviousness.
In the present case, the appellant commenced the commission of rape by
the following overt acts: kissing AAA's nape and neck; undressing her;
removing his clothes and briefs; lying on top of her; holding her hands and
parting her legs; and trying to insert his penis into her vagina. The appellant,
however, failed to perform all the acts of execution which should produce the
crime of rape by reason of a cause other than his own spontaneous desistance,
i.e., the victim's loud cries and resistance. The totality of the appellant's acts
demonstrated the unmistakable objective to insert his penis into the victim's
private parts.

A review of jurisprudence reveals that the Court has not hesitated to

strike down convictions for consummated rape when the evidence failed to
show that penetration, however slight, of the victim's vagina took place.

In People v. Bon, 30 the Court found the appellant guilty of attempted rape
only, as there was no indication that the appellant's penis even touched the
labia of the pudendum of the victim. We further held that the appellant could
not be convicted of consummated rape by presuming carnal knowledge out of
pain.
The Court had a similar ruling in People v. Miranda , 31 where the accused
tried to insert his penis into the victim's private parts, but was unsuccessful, so
he inserted his fingers instead. We convicted the accused of attempted rape
only due to lack of evidence to establish that there was even a slight penile
penetration. We noted, however, that the appellant's act of inserting his fingers
would have constituted rape through sexual assault had the offense occurred
after the effectivity of the Anti-Rape Law of 1997.
In People v. Alibuyog , 32 the victim declared that the accused placed his
penis o n her vagina; and claimed that it touched her private parts. The Court
set aside the accused's conviction for rape, and convicted him of attempted
rape only, because we found the victim's testimony too ambiguous to prove the
vital element of penile penetration. We added that the victim's testimony was
"replete with repeated denial of penile insertion." 33AHcaDC

Similarly, in People v. Quarre, 34 the evidence for the prosecution

consisted only of the victim's testimony that the accused tried, but failed, to
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 insert his penis into her vagina, and she felt pain in the process. No medico-
legal examination report was presented in evidence. Accordingly, the Court
reversed the accused's conviction for rape, and found him guilty of attempted
rape only.
In People v. Ocomen , 35 the Court also set aside the appellant's conviction
for rape because no proof was adduced of even the slightest penetration of the
female organ, aside from a general statement of the victim that she had been
"raped."

People v. Monteron 36 is another noteworthy case where the Court set

aside the appellant's conviction for rape. In this case, the victim testified that
the accused placed his penis on top of her vagina, and that she felt pain. In
finding the accused guilty of attempted rape only, we held that there was no
showing that the accused's penis entered the victim's vagina. We added that
the pain that the victim felt might have been caused by the accused's failed
attempts to insert his organ into her vagina.

In People v. Mariano, 37 the accused tried to insert his penis into the
victim's vagina, but failed to secure penetration. The Court set aside the
accused's conviction for three (3) counts of rape and found him guilty of
attempted rape only. We explained the necessity of carefully ascertaining
whether the penis of the accused in reality entered the labial threshold of the
female organ to accurately conclude that rape had been consummated.
In People v. Arce, Jr. , 38 the Court found the accused guilty of attempted
rape only, because the victim did not declare that there was the slightest
penetration, which was necessary to consummate rape. On the contrary, she
categorically stated that the accused was not able to insert his penis into her
private parts because she was moving her hips away. We further ruled that the
victim's attempt to demonstrate what she meant by "idinidikit ang ari" was
unavailing to prove that rape had been consummated.
In People v. Francisco , 39 the victim testified that the accused "poked" her
vagina. The Court set aside the accused's conviction for qualified rape, and
convicted him instead only of attempted rape after failing to discern from the
victim's testimony that the accused attained some degree of penile
penetration, which was necessary to consummate rape. CHATEa

In People v. Dimapilis , 40 the Court refused to convict the accused for

consummated rape on the basis of the victim's testimony that she felt the
accused's penis pressed against her vagina as he tried to insert it. We
explained that in order to constitute consummated rape, there must be entry
into the vagina of the victim, even if only in the slightest degree.
Finally, in People v. Tolentino , 41 the Court reversed the accused's
conviction for rape and convicted him of attempted rape only, as there was
paucity of evidence that the slightest penetration ever took place. We reasoned
out that the victim's statements that the accused was "trying to force his sex
organ into mine" and "binundol-undol ang kanyang ari" did not prove that the
accused's penis reached the labia of the pudendum of the victim's vagina.
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 "In rape cases, the prosecution bears the primary duty to present its case
with clarity and persuasion, to the end that conviction becomes the only logical
and inevitable conclusion." 42 We emphasize that a conviction cannot be made
to rest on possibilities; strongest suspicion must not be permitted to sway
judgment. In the present case, the prosecution failed to discharge its burden of
proving all the elements of consummated rape.
The Proper Penalty and Indemnities
Under Article 51 of the Revised Penal Code, the imposable penalty for
attempted rape is two degrees lower than the prescribed penalty of reclusion
perpetua for consummated rape. Two degrees lower from reclusion perpetua is
prision mayor whose range is six (6) years and one (1) day to 12 years. Without
any attendant aggravating or mitigating circumstances and applying the
Indeterminate Sentence Law, the maximum of the penalty to be imposed upon
the appellant is prision mayor in its medium period, while the minimum shall be
taken from the penalty next lower in degree, which is prision correccional
whose range is six (6) months and one (1) day to six (6) years, in any of its
periods. Accordingly, we sentence the appellant to suffer the indeterminate
penalty of six (6) years of prision correccional, as minimum, to 10 years of
prision mayor, as maximum.
In addition, we order the appellant to pay the victim P30,000.00 as civil
indemnity, P25,000.00 as moral damages and P10,000.00 as exemplary
damages, in accordance with prevailing jurisprudence on attempted rape
cases. 43
WHEREFORE, premises considered, the June 15, 2009 decision of the
Court of Appeals in CA-G.R. CR HC No. 02759 is MODIFIED, as follows: TcCSIa

The appellant's conviction for the crime of rape is VACATED, and —

(1) we find appellant Christopher Pareja y Velasco GUILTY of

the crime of ATTEMPTED RAPE;

(2) w e SENTENCE him to suffer the indeterminate penalty of

six (6) years of prision correccional, as minimum, to 10 years
of prision mayor, as maximum; and

(3) w e ORDER him to PAY the victim the amounts of

P30,000.00 as civil indemnity; P25,000.00 as moral damages;
and P10,000.00 as exemplary damages.

SO ORDERED.
Carpio, Del Castillo, Perez and Perlas-Bernabe, JJ., concur.

Footnotes
1.Penned by Associate Justice Jose L. Sabio, Jr., and concurred in by Associate
Justice Vicente S.E. Veloso and Associate Justice Ricardo R. Rosario; rollo, pp.
2-17.
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 2.CA rollo, pp. 34-42.
3.The Court shall withhold the real name of the victim-survivor and shall use
fictitious initials instead to represent her. Likewise, the personal
circumstances of the victims-survivors or any other information tending to
establish or compromise their identities, as well as those of their immediate
family or household members, shall not be disclosed.
4.CA rollo, p. 87.
5.Records, pp. 109-110, 115-117.

6.Id. at 118-120.
7.Id. at 121-124.
8.Id. at 126-128.
9.Id. at 130-132.
10.Id. at 133.

11.Id. at 135-137.
12.Id. at 140-147.
13.Records, pp. 300-302.
14.Id. at 307-310.
15.Id. at 311-315.

16.Id. at 316.
17.Supra note 2, at 41.
18.Supra note 1, at 9-14.
19.CA rollo, pp. 72-85.

20.Article 266-A (1) of the Revised Penal Code, as amended.

21.See People v. Bon , 444 Phil. 571, 579 (2003).
22.See People v. Brioso , G.R. No. 182517, March 13, 2009, 581 SCRA 485, 493.
23.Records, pp. 113-131.
24.Id. at 5-6.

25.385 Phil. 912 (2000).

26.Id. at 920-922 (citations omitted).
27.See People v. Pancho, 462 Phil. 193, 205-206 (2003).
28.People v. Brioso, supra note 22, at 495.
29.G.R. No. 183569, April 13, 2011, 648 SCRA 734, 748, citing People v. Collado ,
405 Phil. 880 (2001).
30.536 Phil. 897 (2006).
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 31.519 Phil. 531 (2006).
32.469 Phil. 385 (2004).
33.Id. at 393.
34.427 Phil. 422 (2002).
35.432 Phil. 57 (2002).

36.428 Phil. 401 (2002).

37.420 Phil. 727 (2001).
38.417 Phil. 18 (2001).
39.406 Phil. 947 (2001).
40.397 Phil. 607 (2000).

41.367 Phil. 755 (1999).

42.See People v. Poras, G.R. No. 177747, February 16, 2010, 612 SCRA 624, 644.
43.Supra note 29, at 752.

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