People vs Candelario : 125550 : July 28, 1999 : Per Curiam : En Banc

EN BANC

[G.R. No. 125550. July 28, 1999]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUDIGARIO CANDELARIO and GERRY LEGARDA, accused-appellants.

D E C I S I O N

PER CURIAM:

Both the prosecution and the trial court postulate that lewd design and intent to gain concurred in the commission of the offense for which accused-appellants stand indicted. The latter, however, vigorously challenge the correctness of such position, invoking their innocence and praying that they be spared from the verdict of capital punishment. As lives are at stake, we endeavor to probe deep into these conflicting claims so that in the end the law’s dictates shall be carried out with full conviction that the constitutional right to presumption of innocence has been adequately overturned by the State.

Herein accused-appellants Ludigario Candelario and Gerry Legarda, together with one Joel Benoza who remains at large, have been charged before the Regional Trial Court of Roxas City, Branch XIV, with the crime of Robbery with Multiple Rape in an amended information[1] that reads:

“The undersigned Assistant City Prosecutor accuses LUDIGARIO CANDELARIO alias “CAPID” of Tiglawigan, Cadiz City, GERRY LEGARDA y BORRES OF Pinamangkaan, Balud, Masbate, presently detained at the Roxas City PNP Jail, Roxas City; JOEL BENOZA alias “Cano” of Isabela, Negros Occidental who is at large, of the crime of ROBBERY WITH MULTIPLE RAPE, as defined and penalized under Article 294, paragraph 2 of the Revised Penal Code, as amended, in relation to Section 9 of R.A. 7659, committed as follows:

That on or about the 24th day of March, 1995, in Bgy. Baybay, Roxas City, Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring, confederating together and mutually helping one another, each armed with a deadly weapon, did then and there wilfully (sic), unlawfully and feloniously, by means of violence and intimidation, take from its owner MARIBEL DEGALA, 17 years of age and resident of Bgy. Punta Tabuc, Roxas City, Seven Hundred Pesos (700.00) cash money, and one (1) maong shorts valued at P75.00, Philippine Currency, with intent to gain and against the consent of its owner, to the damage and prejudice of said owner Maribel Degala in the said total sum; that on the occasion of the said robbery in pursuance of their conspiracy, said accused, each armed with a deadly weapon, by means of violence and intimidation and in conspiracy with each other, did then and there wilfully (sic), unlawfully and feloniously have carnal knowledge with said MARIBEL DEGALA, against her will.

ALL CONTRARY TO LAW, and the offense of robbery was accompanied with multiple rape, committed by more than two (2) persons and with the use of a deadly weapon.”

Upon arraignment, accused-appellants entered their respective pleas of “not guilty” to the indictment. Trial ensued and, thereafter, the court a quo rendered its decision[2] on February 29, 1996, finding them guilty as charged and sentencing them as follows:

“FOREGOING established facts considered, the Court finds accused Ludigario Candelario and Gerry Legarda GUILTY beyond reasonable doubt of the crimes of Robbery with three counts of Rape committed at Barangay Baybay, Roxas City in the early morning of March 24, 1995. Since it is a settled rule that once conspiracy is established, the act of one conspirator is attributable to all, then each conspirator must be held liable for each of the felonious acts committed as a result of the conspiracy regardless of the nature and severity of the appropriate penalties prescribed by law.

ACCORDINGLY, accused Ludigario Candelario is sentenced to suffer the extreme penalty of Three (3) DEATHS in accordance with the doctrine of the Supreme Court enunciated in People v. Jose, 37 SCRA 450, and to pay the complaining witness the amount of FIFTY THOUSAND (P50,000.00) PESOS as moral damages and to pay the costs.

Considering that accused Gerry Legarda is a minor, 15 years of age, at the time of the commission of the offense, he is entitled to a privileged mitigating circumstance of minority. Consequently, he is sentenced to suffer an imprisonment of thirty (30) years of RECLUSION PERPETUA for each count and to indemnify private complainant Maribel Degala in the amount of FIFTY Thousand (P50,000.00) PESOS jointly and severally with Ludigario Candelario and to pay the costs, without prejudice to his filing an application for suspension of sentence under Article 192 of Presidential Decree 603.

SO ORDERED.”

The facts as established by the prosecution follows.

Coming from Roselle Cinema 1 in downtown Roxas City at about 10:00 o’clock in the evening of March 23, 1995, complainant Maribel Degala and her boyfriend, Junlo Dizon, proceeded to Marc’s Beach Resort which was located at Barangay Baybay, Roxas City. Upon arrival thereat, they occupied one of the open cottages along the seashore and engaged in intimate conversation while caressing and kissing each other. The cottage at the time had no lighting but there was illumination coming from the moonlight and the fluorescent lamps installed at the main building of Marc’s Beach Resort.

Realizing that it was already past midnight, they then decided to go home. Four armed men, however, barged into their cottage, one of whom men immediately poked at ice pick at Maribel’s neck while another pointed a knife at Junlo. The two other companions stood by and merely acted as lookouts. Finding an opportunity to escape, Junlo jumped out of the windows of the cottage and ran away. Three of the armed men gave chase and tried to stab him but they were not able to catch up with him as he fled into the compound of Marc’s Beach Resort to procure help from security guards manning the same.

Meanwhile, the one left at the cottage, whom Maribel later identified as Ludigario Candelario, continued poking his weapon on her neck while threatening her not to create any noise. Worried about her boyfriend’s safety, she kept quiet.

Two of the men who gave chase returned to the cottage and started frisking for valuables. Nothing, however, was found in her possession as she already dropped her wristwatch earlier on the side of a wall.

Finding nothing, the trio took notice of a bag placed on a table containing Junlo’s clothes and short pants which Maribel bought for Junlo in the amount of P75.00 as well as cash worth P700.00. Thereafter, they dragged complainant to the seaside and proceeded to Barangay Culasi, warning her not to shout lest they kill her. They then passed through the dark portion of the seashore until they reached pandan groves.

At said place, Joel Benoza allegedly ordered complainant to undress which she, however, refuse to obey. Her refusal prompted the malefactors to undress her themselves. Accused-appellants Candelario and Legarda held her by the arms while Benoza unbuttoned and pulled down her pants.

Upon removing her pants, the three spread her legs and started ravishing her, while Benoza starting first while the other two stood by at a distance of about two to three meters. The trio alternately raped her, twice for each of them. Complainant could do nothing but cry in pain as her rapists satisfied their lust.

Legarda was the last to have sexual intercourse with complainant after his two companions left. As Legarda stood up and tried to have coitus with complainant for the third time, the latter mustered enough strength and kicked the former on the breast. Legarda fell and rolled on the ground, giving complainant the opportunity to extricate herself from the rapist’s clutches. She immediately ran away and hid herself behind stans of pandan while Legarda shouted to his companions that complainant had escaped. The trio searched the area but failing to find her, they proceeded to walk towards Barangay Culasi. When the three were some distance away, complainant fixed her underwear and pants and then hid again under a tree as she was afraid that her rapists might come back. After spending almost an hour in hiding, she decided to walk home towards Dumolog but dropped by the cottage where she and her boyfriend stayed to look for her wristwatch. While traversing the national highway, a police patrol car where her boyfriend was on board chanced upon her. She was hustled inside the car where she related her harrowing experience to her boyfriend and the police. After dropping by at the crime scene, they proceeded to the Roxas City police station for investigation.

In the morning of the same day, complainant was brought to Roxas Memorial Provincial Hospital where she was examined by Dr. Ma. Lourdes Lanada. Said examination yielded the following results:[3]

“March 28, 1995

Date

TO WHOM IT MAY CONCERN:

This is to certify that MARIBEL A. DEGALA, 17 years old, male, female, single, married, widowed from Punta Tabuc, Roxas City was examined, consulted, admitted, treated in this hospital, March 24, 1995 with the following findings:

NOI: ALLEGED RAPE

TOI: 1:00 A.M.

DOI: 3/24/95

POI: Marc’s Beach Resort Baybay, Roxas City

TOE: 7:45 A.M.

DOE: 3/24/95

LMP: Feb. 27, 1995; 3 days duration

PE: Grossly normal female external female genitalia appropriate with age

Introitus: Admits 1 index finger with ease

Hymen: Open, intact

Discharges: Whitish, non-foul smelling

Cervix: Firm, Close

Uterus: small

For spermatozoa det.

SPERMATOZOA DET – POSITIVE FOR SPERMATOZOA

This certification is issued per request of the interested party for whatever legal purpose it may serve her best.

(Sgd.) MA. LOURDES B. LANADA, M.D.

Medical Officer-III

Lic. No. 64123”

At the witness stand, Dr. Lanada testified that the presence of whitish fluid discharge inside the complainant’s vagina which, upon analysis at the Saint Martin Laboratory, turned out to be positive for spermatozoa and the fact that complainant’s vagina admitted one index finger with ease were all consistent with her claim that she had been raped the night before. Aside from said medical findings, another physician, Dr. Dominga dela Cruz, testified that she likewise examined complainant and found out that the latter had lineal straight laceration at the right lower portion of the labia minora measuring one and one-half centimeters which indicates that the same could have been caused by a very recent and forceful entry of the male organ. Moreover, Dr. dela Cruz also found a “pinpoint” mark on complainant’s neck which wound could have been caused or inflicted by a pointed instrument.

Testifying on how accused-appellants were apprehended, PO3 Gonzalo Andrada declared that a team was created for this purpose upon instruction of the Chief of Police. They initially visited the crime scene to conduct ocular inspection and gather evidence but failing to find valuable information, they went to complainant’s house to ask her for a description of her assailants. On the theory that the culprits are likely to return to the crime scene, the police disguised complainant and made her stroll along the beach of Barangay Baybay and Barangay Libas to identify the suspects who might happen to be there but to no avail. The team then realized that the culprits might have been members of the crew of a fishing boat which calls port at Barangay Culasi. At said port, complainant was again allowed to stroll and walk alone while the police were tailing her at a distance. She then chanced upon a group of men drinking at a nearby store and told the police that one of her rapists was there. But as the police closed in, the suspect disappeared, prompting the team to comb the area. They soon found the man they were looking for outside the Beta House puffing at a cigarette. Having been assured by complainant that the man was her rapist, the police approached said man, introduced themselves as law enforcers and informed him that he was one of the suspects in a rape complaint. This suspect, who turned out to be Candelario, was then brought to the police station for formal investigation upon being duly informed of his constitutional rights. Investigation was temporarily called off when Candelario opted to remain silent but apparently, during a conversation, he admitted having held complainant and referred to his companions merely by their aliases, which did not help the police in any way to determine the identity of the other perpetrators.

Sometime later at Candelario’s detention cell, he was convinced to disclose the identities of his companions who turned out to be crew members of the fishing boat “St. Jude.” Acting on this new development, a team was sent to Barangay Culasi where they found out that one alias “Weng Weng,” who was mentioned by Candelario as one of his alleged companions, was actually accused-appellant Legarda. The team waited for the fishing boat to dock at Culasi where PO3 Felicito Aranza was instructed to go on board and invite the crew to proceed to the Barangay Hall of Culasi. At the hall, a roll call was conducted and everyone was made to identify himself. When Legarda’s name was called, he admitted that he was also “Weng Weng.” Forthwith, he was informed of the accusation against him and then invited to go with them to the police station where he was likewise positively identified by complainant.

Accused-appellant’s defense consisted merely of denials and alibis.

Testifying for Legarda, witness Juanito dela Cruz claimed that he was a “Maestro” or “Major Patron” of the fishing vessel “St. Jude” whose crew of 14 men included Legarda. He declared that the vessel was on the high seas at around 12:45 o’clock in the morning of March 24, 1995 and that it docked at the Culasi Port only at 10:00 o’clock in the evening of said date. To support his claim, he presented a “Certificate of Clearance” issued by the Bureau of Fisheries indicating the vessel’s port of origin as well as the time and date of departure. The back portion of said certificate apparently contained the list of the crew members which included Legarda’s name. He admitted, however, that the certificate’s copy on file with the Bureau of Fisheries contained no list of the crew members and that he was only the one who prepared such list. According to him, he learned about Legarda’s arrest only on April 2, 1995. On cross-examination, he further admitted that he did not fill up the blank on said certificate indicating the vessel’s date of arrival. Moreover, when the vessel left Culasi, there were actually only 12 crewmembers on board but that he put 14, nonetheless. Two crewmembers were allegedly left behind on account of illness, which fact was not reported to the Bureau of Fisheries.

Likewise testifying for Legarda was Jesus Sevilla, a merchant engaged in buying and selling fish. He declared that on March 19, 1995, he had a transaction with Legarda for the purchase of “pacul” fish from the latter. At about 11:00 o’clock on March 24, 1995, he claimed that he went to the Culasi fishing port but found out that Legarda had already gone ashore. He then proceeded to his elder sister’s store where he met Legarda who then handed him the “pacul” he ordered.

As third witness for Legarda, the defense also presented Roberto Articulo, provincial head of the Bureau of Fisheries and Aquatic Resources (BFAR) for the Province of Capiz. As clearing officer, his job was to issue certificates of clearance. When shown the Certificate of Clearance for the vessel “St. Jude,” he admitted, however, that he did not require anymore the filling up of the blank asking for the vessel’s date of arrival as such date usually varied. His testimony likewise revealed that he was not able to closely supervise the actual number of crewmembers sailing out to sea and that with respect to “St. Jude,” he did not bother to ask why there were only 12 members on board instead of 14, and that he was not actually present when the vessel departed. Finally, he admitted that his office would only learn of the vessel’s date of arrival when the certificate is surrendered. In the case of “St. Jude,” he did not remember the date when its certificate was surrendered.

Testifying for and on his own behalf, Candelario vehemently denied having anything to do with the rape committed against complainant because he was then on the high seas fishing on board “F/B Marilie.” To support this claim, he presented Gina Panaguiton, secretary/bookkeeper of Mr. Larry Calimoso who owned “F/B Marilie” and “St. Jude.” She testified that she kept a columnar book containing the names of crewmembers that included the name Ludigario Candelario also known as “Capid.” According to her, her record showed that Candelario was supposedly on board “F/B Marilie” for the period of March 17-26, 1995 on a fishing trip to Masbate. On cross-examination, however, she admitted that she only relied on the names of the crewmembers as supplied by the vessel’s “Maestro” or “Patron” and that she had no way of checking whether the crewmembers listed actually went with vessels except upon their arrival to unload their catch.

As stated earlier, the trial court rendered a decision finding accused-appellants guilty of the crime of robbery with rape. The trial court justified its decision, thus:

“A careful scrutiny of the testimony of the witnesses for the prosecution and documentary evidence presented during the trial reveals that a crime of Robbery with Rape were (sic) committed against the person of complainant Maribel Degala in the early morning of March 24, 1995 at Barangay Baybay, Roxas City. There is no doubt as to the claims of Maribel Degala that she was raped in that early morning as corroborated by the testimony of Junlo Dizon and that of the police officers who investigated the incident and eventually apprehended the two accused, Ludigario Candelario and Gerry Legarda, on March 25, 1995 and April 2, 1995 respectively. It is not too farfetched that the accused may have been sexually stimulated when they witnessed and actually saw complainant Maribel Degala and her boyfriend, Junlo Dizon, caressing each other, probably passionate as (sic) that, and kissing each other that impelled them to the commission of the crime by barging into the cottage, obviously under the influence of liquor and started their savage act of molesting the complainant and almost killing her boyfriend, Junlo Dizon, by running after him and stabbing him only that he was able to evade the stab and eventually ravishing her in that pandan grooves (sic).

The defense of alibi and denial interposed by both accused are certainly unavailing for them. Well settled (sic) is the rule that denial of the accused cannot prevail over his positive identification by the witnesses whose version of the incident bear all the earmarks of candor, credibility and spontaneity. Likewise, it is settled that when a woman says that she had been raped, she says in effect all that is necessary to show that she had indeed been raped, and if her testimony meets the test of credibility, the accused may be convicted on the basis of the victim’s testimony. There is no reason for her to claim that she had been raped if it is not true. Considering a Filipina’s inbred modesty and antipathy in airing publicly the things that affect her honor, it is hard to conceive that Maribel Degala would undergo the expense, trouble and inconvenience of a public trial, suffer the scandal, embarassment and humiliation such action would indubitably invite and allow the examination of her private part if she had not been raped and her motive was other than to bring to justice the person who committed the crime. (People v. Ricardo Lascuna, et al. G.R. No. 90626, August 18, 1993, Davide, Jr.).

The court takes note of the fact that accused Gerry Legarda did not testify during the trial of this case, at least, to substantiate his defense of alibi. Instead his counsel just submitted his Certificate of Live Birth (Exh. “4” – Legarda) to establish the fact of his minority. While it is true that the accused has the right to remain silent and this should not be taken against him, and the fact is, the people’s evidence remains unrebutted. (People v. Pizarro, 131 SCRA 624).

There is no doubt that the accused committed the offenses charged in conspiracy with one another. Proof of a previous agreement to commit a crime is not essential to establish conspiracy. It is sufficient that the accused be shown to have acted in concert pursuant to the same objective. (People v. Dominador Salcedo, G.R. No. 78774, April 12, 1989).

In another case, the Supreme Court said, “the existence of conspiracy may be inferred from proof of circumstances which show concurrence of will of the parties in the furtherance of a common design and every act of one of the conspirators in furtherance thereto is the act of all. (Geronimo Manalaysay vs. Court of Appeals, G.R. No. 79946; and Froilan Manalaysay vs. People of the Philippines, G.R. No. 79971, both dated April 12, 1989).

Likewise, it has been established by the prosecution that the instant charges of Robbery with Multiple Rape were committed with the use of the deadly weapons and by three persons as defined and penalized under Section 11 of Republic Act No. 7659 amending Article 335 of the Revised Penal Code.”[4]

In light of the above pronouncement of the court a quo and after a meticulous study of the parties’ respective arguments, the Court finds itself confronted with the following major questions:

1. Did the prosecution’s evidence sufficiently establish beyond reasonable doubt accused-appellants’ participation in the rape of complainant and asportation of a bag containing her valuables?

2. Did the trial court correctly designate and hold accused-appellants liable for the special complex crime of robbery with rape?

As regards the question of their involvement in the incident complained of, accused-appellants strongly contend that they could not be held liable for robbery with rape because, first, there was no proof that complainant was divested of anything as she, in fact, admitted the same during her direct examination and, second, the rape charge was of doubtful veracity since it happened during nighttime and there was no showing that the cottage where the incident happened was lighted, so that it would have been impossible for complainant to recognize who her rapists were.[5]

These arguments fail to persuade us.

We fully concur with the trial court’s conclusion that there was a taking of complainant’s valuables not only because it was in a better position to observe the witnesses’ demeanor and manner of testifying as to justify its findings giving great weight to the credibility of the witnesses, but also because after scrutinizing and evaluating the testimony of the complaining witness, as transcribed from the stenographic notes, we find her answers to the incisive questions propounded to her firm and straightforward.

Accused-appellants’ citation of complainant’s testimony that nothing was taken from her was made out of context. Had they continued reading the entire testimony given on direct examination and not merely lifted that which was favorable to them, then they would have discovered that there was reason for her to say that nothing was taken from her. This was because she already dropped her watch earlier when the accused-appellants barged into the cottage. But this does not negate the fact of asportation for in said testimony the complainant declared thus:

“Q: After frisking you, you said that nothing of value was taken of (sic) you, then after that, what happened next?

A: When the three armed men have [taken] nothing from me, or from my person, one of them notice (sic) the bag of Junlo Dizon which was placed on the table, then it was taken by one of their companions who is present here in the court room, today.

Q: Do you know the contents of that bag?

A: Yes, Sir.

Q: What were the contents of that bag?

A: Inside the bag was (sic) the clothes of Junlo Dizon and the short [pants] I bought for P75.00 which I bought on March 23, and my wallet [which] contained P700.00.

Q: After one of them took that bag what happened next?

A: When they got hold of that bag they dragged me out of the cottage.”

[Underscoring supplied].

It is clear, therefore, that when complainant testified that nothing was taken from her, what she meant was that nothing was taken from her person because her other possession were inside a bag on top of the cottage’s table. Against this positive testimony of complainant who was extensively examined by the defense, accused-appellants offered no evidence to the contrary, except the bare reliance upon complainant’s alleged statement that nothing was taken from her. We then hold that in this respect, the prosecution has indeed been able to establish the fact of taking by accused-appellants who were positively identified by no less than the complainant herself.

As to the fact of accused-appellants’ carnal knowledge with complainant, we are likewise convinced that the same has been adequately proved by the prosecution’s evidence. Even as under settled jurisprudence, the evidence for conviction must be clear and convincing to overcome the constitutional presumption of innocence,[6] we do find the straightforward, consistent and detailed manner in which complainant related her harrowing experience in the hands of accused-appellants bearing all the earmarks of verity. Not only that, the corroborative testimony of complainant’s boyfriend, Junlo Dizon, was not only consistent with her story in all material respects but also replete with minutiae of the incident. In addition, the rape committed upon the person of complainant could not have been a mere tall tale, as the physician’s medical findings which were obtained in the very morning of March 24, 1995 disclosed the fact that discharge from complainant’s vagina confirmed the presence of spermatozoa and laceration. All these indicate that complainant had indeed been recently deflowered. Needless to say, it has been held in a long line of cases that when a woman says that she has been raped, she says in effect all that is necessary to show that she had been raped,[7] since a woman will not expose herself to a humiliation of a rape trial, with its attendant publicity and the morbid curiosity it will arouse, unless she has been truly wronged and seeks atonement for her abuse.[8]

Accused-appellants' claim that they would not have been identified by complainant because the cottage where the incident took place was not lighted likewise holds no water. Quite the contrary, the cottage was sufficiently illuminated and was not completely dark as to preclude the possibility of identifying accused-appellants. The complainant’s testimony[9] shows this:

“Q: Could you place (sic) describe the cottage where you and Junlo Dizon were conversing?

A: The cottage has a roof, open walls and windows and has benches in (sic) both sides and a table in one corner of the cottage.

Q: What kind of materials is the cottage made of?

A: Bamboos.

Q: At around 12:45 past midnight of March 24, 1995 in the early morning while you and Junlo Dizon were conversing with each other at the open cottage made of bamboos, could you still recall the surrounding when you and your boyfriend Junlo Dizon were conversing?

A: In front of the cottage there was a lighted post and across the street road fronting the cottage there was also a lighted post and at the back of the cottage there was also a lighted post.

Q: While you and your boyfriend Junlo Dizon were conversing in that open cottage, could you see each other (sic) face?

A: Yes, Sir, I could see his face.

xxx xxx xxx

Q: While you and Maribel were conversing inside that unlighted open cottage, can you see with each other’s face?

A: Yes, Sir.

Q: Why do you say that you can see with each other’s face?

A: Because of the light coming from the main building aside from the light also coming from our back and also there was moonlight.” [Underscoring supplied].

Moreover, as we held in People v. Dolar,[10] “it is the most natural reaction for victims of criminal violence to strive to see the looks and faces of their assailants and observe the manner in which the crime was committed. Most often the face of the assailant and body movements thereof, create lasting impressions which cannot be easily erased from their memory.” We do not see cogent reason why this should not apply in the case at bar considering that when asked to identify to the courtroom who her assailants were, she readily pointed to accused-appellants.[11]

Finally, accused-appellant Candelario’s insinuation that he was not identified by complainant when the latter saw him outside the beta house is hardly credible. There was actually no difficulty on the part of complainant in identifying him. In fact, she was even the one who told the police team that Candelario, who was then drinking in a store together with other men, was with said group. What happened was that she was merely acting upon instructions of PO3 Andrada, Jr. to be sure that the police would be apprehending the right suspect. The record of PO3 Andrada, Jr.’s testimony[12] clearly shows this:

“COURT:

Q: So what did you do?

A: I told Maribel to be more certain because we do not want to apprehend people who are not involved in that case so that [what] she did was to return to the beta house pretended to be watching also the beta movie and stayed very close to that person and kept on looking at his face.

PROSECUTOR FIRMALINO:

Q: After the cigarette dropped to the ground, what did you and your other companions do, if you did anything?

A: After the cigarette of the suspect dropped to the ground, I called Maribel and asked her, “Maribel, are you really sure now that he is one of the suspects? Maribel told us that, I have been telling you before that he is the one of the suspects.” [Underscoring supplied].

As regards accused-appellants’ liability of robbery with rape, considering that the evidence has established accused-appellants’ participation in the acts of rape and the taking of complainant’s personal belongings, the next logical question is whether they should be held liable for the special complex crime of robbery with rape. There is no doubt that the recitals in the information were really for the crime of robbery with rape. What is important though is to determine if the evidence supports said indictment.

People v. Faigano,[13] holds that to be liable for the special complex crime of robbery with rape, the intent to take personal property of another must precede the rape, and if the original plan was to rape but the accused after committing the rape also committed robbery when the opportunity presented itself, the offenses should be viewed as separate and distinct. In this case, the Court declared that two separate offenses of rape and robbery were committed by accused-appellant as evidence showed that “when accused-appellant entered the victim’s house he only had in mind sexual gratification. The taking of the cash and pieces of jewelry against Nely’s will appears to be an afterthought.”[14]

Reiterating the same rule, the Court likewise held in People v. Cruz[15] that the accused-appellant therein could be held liable only for the separate offenses of robbery and rape as the rape was first committed prior to accused-appellant’s act of grabbing the victim’s wristwatch.

In the case at bar, we find evidence clearly showing intent to gain and asportation preceding Maribel’s rape. It must be noted that right after accused-appellant and two others barged into the cottage and chased Dizon who managed to jump out of the window and escape, they immediately frisked complainant and eventually took a bag containing personal effects belonging to her and Dizon. To our mind, these contemporaneous acts of accused-appellants stress the fact that they were initially motivated by animus lucrandi. The rape only occurred after the acts of robbery had already been consummated. A review of complainant’s testimony[16] is in order:

“Q: After two of the three men who gave chased (sic) to Junlo Dizon while you were being held by Ludigario Candelario, what happened next?

A: When the armed men came back, Ludigario Candelario was still holding me while the two armed men were frisking for my valuable things that they may get from me.

xxx xxx xxx

Q: After frisking you, you said that nothing of value was taken of (sic) you, then after that, what happened next?

xxx xxx xxx

Q: After one of them took that bag what happened next?

A: When they got hold of that bag they dragged me out of the cottage.”

Further reading of complainant’s testimony would show that after she was dragged out of the cottage, she was brought to the place where she was forced to undress and then ravished. This is proof that indeed the taking preceded the rape. It should also be emphasized that robbery, and not merely theft, was committed even if the bag were just lying on the table because at the time of its taking, force and intimidation were continuously applied against the person of complainant as an ice pick was poked on her neck.[17]

Under Article 294 (1) of the Revised Penal Code, the special complex crime of robbery with rape has a corresponding penalty of reclusion perpetua to death. The characterization of the offense as robbery with rape, however, is not changed simply because there were several rapes committed. The multiplicity of rapes should instead be taken into account in raising the penalty to death. This is consistent with our ruling in the case of People v. Obtinalia[18] where we took note of the absurdity of punishing rape committed by two or more persons with the penalty of death and then punishing the offender only with reclusion perpetua if he commits robbery along with rape.

But since conspiracy as among the three malefactors was successfully proved by the prosecution, then it necessarily follows that each one is likewise liable for the acts of the two others. In this case, therefore, Candelario and Legarda shall each be liable for three counts of robbery with rape.

The case of Gerry Legarda’s penalty of reclusion perpetua for each count of robbery with rape need not detain us long considering the fact that the trial court correctly appreciated the privileged mitigating circumstance of minority in his favor.

Consistent, however, with prevailing jurisprudence, the civil indemnity ex delicto for the victim shall be in the amount of P75,000.00 for each count of rape and moral damages of P50,000.00, likewise for each count of rape without need of pleading or proof of the basis thereof.

Four members of the Court maintain their position that Republic Act No. 7659, insofar as it prescribe the death penalty, is unconstitutional; nevertheless they submit to the ruling of the Court, by a majority vote, that the law is constitutional and that the death penalty should be accordingly imposed.

WHEREFORE, premises considered, the judgment of the Regional Trial Court of Roxas City, Branch XIV, in Criminal Case No. C-4692 dated February 29, 1996 imposing the death penalty on accused-appellant Ludigario Candelario and reclusion perpetua on accused-appellant Gerry Legarda is hereby AFFIRMED with the MODIFICATION that accused-appellants shall be ordered to indemnify the victim Maribel Degala in the amount of P75,000.00 as civil indemnity and P50,000.00 as moral damages, respectively for each count of the offense charged.

Costs against accused-appellants.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for possible exercise of executive clemency.

SO ORDERED.

Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima , Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., on leave.