G.R. Nos. 135695-96 October 12, 2000 PEOPLE OF THE PHILIPPINES vs. TOMAS TUNDAG

FACTS:  

On November 18, 1997, private complainant Mary Ann Tundag filed with the Mandaue City Prosecutor’s Office two separate complaints for incestuous rape. She alleged that Tomas Tundag, being the father of complainant who is a 13-year old girl, with deliberate intent, did then and there wilfully, unlawfully and feloniously have sexual intercourse with the said offended party against the latter’s will. 

Tomas Tundag pleaded not guilty of the charges. His defense was bare denial claiming that his daughter, Mary Ann fabricated the rape against him since they had a quarrel when he reprimanded her for going out whenever he was not at home. Thus, there’s no witness to reinforce his testimony. 

On August 31, 1998, the court rendered its decision, finding the appellant guilty of 2 counts of incestuous rape and sentencing him to death twice.

Complainant contended that on September 5, 1997 in the evening, she was in the house together with her father and illustrated how she was being raped by the accused. Another rape incident happened on the evening of November 7, 1997, after she finished washing the dishes. This time a very sharp knife which his father was holding and was pointing it at the right side of her neck which made her afraid. On the following day, she went to her neighbour, Bebie Cabahug, and told her everything that her father did. They then reported the matter to the police and went to the Southern Island Hospital where she was examined and have her medical examination. She was then brought back to the police for further investigations.

Appellant’s claim that the complainant’s charges were manufactured did not impress the trial court, which found him twice guilty of rape. Appellant flatly denied and contended that on September 5, 1997, he was working as a watch repairman near Gal’s Bakery in Mandaue City Market and went home tired and sleepy. On November 7, 1997, he claimed he was at work. In his brief, he argued that it was impossible for him to have raped his daughter because when the incidents allegedly transpired, "he went to work and naturally, being exhausted and tired, it is impossible for him to do such wrongdoings."

ISSUES:

1. WON the trial court committed an error in not absolving the accused-appellant of the crimes charged in the informations despite the presence of reasonable doubt to exculpate him of the same.

2. WON it was correct for the Court to take judicial notice of Mary Ann’s age without a hearing.

HELD:

1. The Court affirmed the trial court’s decision, with the recommendation that the award of damages and indemnity ex delicto be modified to conform to prevailing jurisprudence. The Court found no room to disturb the trial court’s judgment concerning appellant’s guilt, because his defense is utterly untenable.

Appellant’s defense of alibi and denial is negative and self-serving. It hardly counts as a worthy and weighty ground for exculpation in a trial involving his freedom and his life. Against the testimony of private complainant who testified on affirmative matters, such defense is not only trite but pathetic. Denial is an inherently weak defense, which becomes even weaker in the face of the positive identification by the victim of the appellant as the violator of her honor. Indeed, the Court found that private complainant was unequivocal in charging appellant with ravishing her. The victim’s account of the rapes complained of was straightforward, detailed, and consistent. Her testimony never wavered even after it had been explained to her that her father could be meted out the death penalty if found guilty by the court.

2. No. To take judicial notice on Mary Ann's age without a hearing is improper.

SEC. 3. Judicial notice, when hearing necessary. - During the trial, the court, on its own initiative, or on request of a party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon.

In this case, judicial notice of the age of the victim is improper, despite the defense counsel's admission, thereof acceding to the prosecution's motion. As required by Section 3 of Rule 129 as to any other matters such as age, a hearing is required before courts can take judicial notice of such fact. Generally, the age of the victim may be proven by the birth or baptismal certificate of the victim, or in the absence thereof, upon showing that said documents were lost or destroyed, by other documentary or oral evidence sufficient for the purpose.