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SUPREME COURT REPORTS ANNOTATED VOLUME 329

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Case Title:
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee, vs. PRIMO
CAMPUHAN Y BELLO, accused- 270 SUPREME COURT REPORTS ANNOTATED
appellant. People vs. Campuhan
Citation: 329 SCRA 270
More... *
G.R. No. 129433. March 30, 2000.

Search Result PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PRIMO CAMPUHAN Y

BELLO, accused-appellant.

Criminal Law; Rape; Words and Phrases; 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 victimÊs vagina, or the mons pubis·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.·In People v. De la Peña we clarified that the decisions finding a case for rape even if the
attackerÊs penis merely touched the external portions of the female genitalia were made in the
context of the presence or existence of an erect penis capable of full penetration. Where the
accused failed to achieve an erection, had a limp or flaccid penis, or an oversized penis which
could not fit into the victimÊs vagina, the Court nonetheless held that rape was consummated
on the basis of the victimÊs testimony that the accused repeatedly tried, but in vain, to insert
his penis into her vagina and

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* EN BANC.

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in all likelihood reached the labia of her pudendum as the victim felt his organ on the lips of her
vulva, or that the penis of the accused touched the middle part of her vagina. 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 victimÊs 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.
Same; Same; Same; Attempted Rape; Acts of Lasciviousness; „Pudendum‰ or „Vulva,‰ „Mons
Pubis,‰ „Labia Majora,‰ „Labia Minora, „ Explained; 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.·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.

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272 SUPREME COURT REPORTS ANNOTATED

People vs. Campuhan

Same; Same; To the mind of the Supreme Court, the case at bar merely constitutes a
„shelling of the castle of orgasmic potency,‰ or a „strafing of the citadel of passion.‰·Judicial
depiction of consummated rape has not been confined to the oft-quoted „touching of the female
organ,‰ but has also progressed into being described as „the introduction of the male organ into
the labia of the pudendum,‰ or „the bombardment of the drawbridge.‰ But, to our mind, the
case at bar merely constitutes a „shelling of the castle of orgasmic potency,‰ or as earlier stated,
a „strafing of the citadel of passion.‰
Same; Same; Presumption of Innocence; Witnesses; It is the burden of the prosecution to
establish how the witness could have seen the sexual contact and to shove her account into the
permissive sphere of credibility·to hold otherwise would be to resolve the doubt in favor of the
prosecution but to run roughshod over the constitutional right of the accused to be presumed
innocent.·It can reasonably be drawn from the foregoing narration that PrimoÊs kneeling
position rendered an unbridled observation impossible. Not even a vantage point from the side
of the accused and the victim would have provided Corazon an unobstructed view of PrimoÊs
penis supposedly reaching CrysthelÊs external genitalia, i.e., labia majora, labia minora,
hymen, clitoris, etc., since the legs and arms of Primo would have hidden his movements from
CorazonÊs sight, not to discount the fact that PrimoÊs right hand was allegedly holding his penis
thereby blocking it from CorazonÊs view. It is the burden of the prosecution to establish how
Corazon could have seen the sexual contact and to shove her account into the permissive sphere
of credibility. It is not enough that she claims that she saw what was done to her daughter. It is
required that her claim be properly demonstrated to inspire belief. The prosecution failed in
this respect, thus we cannot conclude without any taint of serious doubt that intergenital
contact was at all achieved. To hold otherwise would be to resolve the doubt in favor of the
prosecution but to run roughshod over the constitutional right of the accused to be presumed
innocent. Same; Same; It is inconsistent with manÊs instinct of self-preservation to remain
where he is and persist in satisfying his lust even when he knows fully well that his dastardly
acts have already been discovered or witnessed by no less than the mother of his victim.·It is
inconsistent with manÊs instinct of self-preservation to remain where he is and persist in
satisfying his Just even when he knows fully well that his dastardly acts have already been
discov-

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ered or witnessed by no less than the mother of his victim. For, the normal behavior or reaction
of Primo upon learning of CorazonÊs presence would have been to pull his pants up to avoid
being caught literally with his pants down. The interval, although relatively short, provided
more than enough opportunity for Primo not only to desist from but even to conceal his evil
design.
Same; Same; Witnesses; Although a childÊs testimony must be received with due
consideration on account of her tender age, the Supreme Court still endeavors to harness only
what in her story appears to be true, acutely aware of the equally guaranteed rights of the
accused.·Antithetically, the possibility of PrimoÊs penis having breached CrysthelÊs vagina is
belied by the childÊs own assertion that she resisted PrimoÊs advances by putting her legs close
together; consequently, she did not feel any intense pain but just felt „not happy‰ about what
Primo did to her. Thus, she only shouted „AyoÊko, ayoÊko! not „Aray ko, aray ko!‰ In cases where
penetration was not fully established, the Court had anchored its conclusion that rape
nevertheless was consummated on the victimÊs testimony that she felt pain, or the medico-legal
finding of discoloration in the inner lips of the vagina, or the labia minora was already gaping
with redness, or the hymenal tags were no longer visible. None was shown in this case.
Although a childÊs testimony must be received with due consideration on account of her tender
age, the Court endeavors at the same time to harness only what in her story appears to be true,
acutely aware of the equally guaranteed rights of the accused. Thus, we have to conclude that
even on the basis of the testimony of Crysthel alone the accused cannot be held liable for
consummated rape; worse, be sentenced to death.
Same; Same; Evidence; In cases of rape where there is a positive testimony and a medical
certificate, both should in all respects complement each other; otherwise, to rely on the
testimonial evidence alone, in utter disregard of the manifest variance in the medical certificate,
would be productive of unwarranted or even mischievous results.·In cases of rape where there
is a positive testimony and a medical certificate, both should in all respects complement each
other; otherwise, to rely on the testimonial evidence alone, in utter disregard of the manifest
variance in the medical certificate, would be productive of unwarranted or even mischievous
results. It is necessary to carefully ascertain whether the penis of the accused in reality entered
the labial threshold of the female organ to accurately

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conclude that rape was consummated. Failing in this, the thin line that separates attempted
rape from consummated rape will significantly disappear.
Same; Same; Attempted Rape; 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 spontaneous
desistance.·Under Art. 6, in relation to Art. 335, of the Revised Penal 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. All the elements of attempted
rape·and only of attempted rape·are present in the instant case, hence, the accused should
be punished only for it.

AUTOMATIC REVIEW of a decision of the Regional Trial Court of Malabon, Metro

Manila, Br. 170.

The facts are stated in the opinion of the Court.

The Solicitor General for plaintiff-appellee.
Public AttorneyÊs Office for accused-appellant.

BELLOSILLO, J.:
1 2
On 3 April 1990 this Court in People v. Orita finally did away with frustrated rape
and allowed only attempted rape and consummated rape to remain in our statute
books. The instant case lurks at the threshold of another emasculation of the stages of
execution of rape by considering almost every attempt at sexual violation of a woman
as consummated rape, that is, if the contrary view were to be adopted. The danger
there is that that concept may send the wrong signal to every roaming lothario,
whenever the opportunity bares itself, to

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1 People v. Ceilito Orita alias „Lito,‰ G.R. No. 88724, 3 April 1990, 184 SCRA 105.
2 People v. Erinia, 50 Phil. 998 (1927).

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better intrude with climactic gusto, sans any restraint, since after all any attempted
fornication would be considered consummated rape and punished as such. A mere
strafing of the citadel of passion would then be considered a deadly fait accompli,
which is absurd.
In Orita we held that rape was consummated from the moment the offender had
carnal knowledge of the victim since by it he attained his objective. All the elements of
the offense were already present and nothing more was left for the offender to do,
having performed all the acts necessary to produce the crime and accomplish it. We
ruled then that perfect penetration was not essential; any penetration of the female
organ by the male organ, however slight, was sufficient. The Court further held that
entry of the labia or lips of the female organ, even without rupture of the hymen or
laceration of the vagina, was sufficient to warrant conviction for consummated rape.
We distinguished consummated rape from attempted rape where there was no
penetration of the female organ because not all acts of execution were performed as the
3
offender merely commenced the commission of a felony directly by overt acts. The
inference that may be derived therefrom is that complete or full penetration of the
vagina is not required for rape to be consummated. Any penetration, in whatever
degree, is enough to raise the crime to its consummated stage.
But the Court in Orita clarified the concept of penetration in rape by requiring
entry into the labia or lips of the female organ, even if there be no rupture of the
hymen or laceration of the vagina, to warrant a conviction for consummated rape.
While the entry of the penis into the lips of the female organ was considered
synonymous with mere touching of the external genitalia, e.g., labia majora, labia
4
minora, etc., the crucial doctrinal bottom line is that touching must be inextricably
viewed in light of, in relation to, or as an essential part of, the process of penile
penetration, and not just mere touching

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3 See Note 1.
4 People v. Quiñanola, G.R. No. 126148, 5 May 1999, 306 SCRA 710.

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in the ordinary sense. In other words, the touching must be tacked to the penetration
itself. The importance of the requirement of penetration, however slight, cannot be
gainsaid because where entry into the labia or the lips of the female genitalia has not
been established, the crime committed amounts merely to attempted rape.
Verily, this should be the indicium of the Court in determining whether rape has
been committed either in its attempted or in its consummated stage; otherwise, no
substantial distinction would exist between the two, despite the fact that penalty-wise,
this distinction, threadbare as it may seem, irrevocably spells the difference between
life and death for the accused·a reclusive life that is not even perpetua but only
temporal on one hand, and the ultimate extermination of life on the other. And,
arguing on another level, if the case at bar cannot be deemed attempted but
consummated rape, what then would constitute attempted rape? Must our field of
choice be thus limited only to consummated rape and acts of lasciviousness since
attempted rape would no longer be possible in light of the view of those who disagree
with this ponencia?
On 27 May 1997 Primo Campuhan y Bello was found guilty 5
of statutory rape and
sentenced by the court a quo to the extreme penalty of death, hence this case before us
on automatic
6
review under Art. 335 of the Revised Penal Code as amended by RA
7659.
As may be culled from the evidence on record, on 25 April 1996, at around 4 oÊclock
in the afternoon, Ma. Corazon P. Pamintuan, mother of four (4)-year old Crysthel
Pamintuan, went down from the second floor of their house to prepare Milo chocolate
drinks for her two (2) children. At the ground

________________

5 Decision penned by Judge Benjamin T. Antonio, RTC-Br. 170, Malabon, Metro Manila (Crim. Case

No. 16857-MN).
6 An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for that Purpose the

Revised Penal Code, as amended, other Special Penal Laws, and for Other Purposes, effective on 31
December 1993.

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floor she met Primo Campuhan who was then busy filling small plastic bags with
water to be frozen into ice in the freezer located at the second floor. Primo was a helper
of Conrado Plata, Jr., brother of Corazon. As Corazon was 7
busy preparing the drinks,
she heard one of her daughters cry, „AyoÊko, ayoÊko!‰ prompting Corazon to rush
upstairs. Thereupon, she saw Primo Campuhan inside her childrenÊs room kneeling
before Crysthel whose pajamas or „jogging pants‰ and panty were already removed,
while his short pants were down to his knees.
According to Corazon, Primo was forcing his penis into CrysthelÊs vagina. Horrified,
she cursed the accused, „P - t - ng ina mo, anak ko iyan!‰ and boxed him several times.
He evaded her blows and pulled up his pants. He pushed Corazon aside when she tried
to block his path. Corazon then ran out and shouted for help thus prompting her
brother, 8a cousin and an uncle who were living within their compound, to chase the
accused. Seconds later, Primo was apprehended by those who answered CorazonÊs call
for help. They held the accused at the back of their compound until they were advised
by their neighbors to call the barangay officials instead of detaining him for his
misdeed. Physical examination of the victim yielded negative results. No evident sign
of extra-genital physical injury was noted by the medico-legal officer on CrysthelÊs
body as her hymen was intact and its orifice was only 0.5 cm. in diameter.
Primo Campuhan had only himself for a witness in his defense. He maintained his
innocence and assailed the charge as a mere scheme of CrysthelÊs mother who
allegedly harbored ill

_______________

‰Ayoko,‰ apparently is a contraction of „ayaw ko.‰ „Ayoko, ayoko‰ means „I donÊt like, I donÊt like.‰
7

CorazonÊs brother Vicente Plata responded to her call, as well as others living within the compound
8

namely, Criselda Carlos Manalac, Fernando Bondal, Jose Carlos and Reynoso Carlos.

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9
will against him for his refusal to run an errand for her. He asserted that in truth
Crysthel was in a playing mood and wanted to ride on his back when she suddenly
pulled him down causing both of them to fall down on the floor. It was in this fallen
position that Corazon chanced upon them and became hysterical. Corazon slapped him
and accused him of raping her child. He got mad but restrained himself from hitting
back when he realized she was a woman. Corazon called for help from her brothers to
stop him as he ran down from the second floor.
Vicente, CorazonÊs brother, timely responded to her call for help and accosted Prime
Vicente punched him and threatened to kill him. Upon hearing the threat, Primo
immediately ran towards the house of Conrado Plata but Vicente followed him there.
Primo pleaded for a chance to explain as he reasoned out that the accusation was not
true. But Vicente kicked him instead. When Primo saw Vicente holding a piece of lead
pipe, Primo raised his hands and turned his back to avoid the blow. At this moment,
the relatives and neighbors of Vicente prevailed upon him to take Primo to the
barangay hall instead, and not to maul or possibly kill him.
Although Primo Campuhan insisted on his innocence, the trial court on 27 May
1997 found him guilty of statutory rape, sentenced him Sto the extreme penalty of
death, and ordered him to pay his victim P50,000.00 for moral damages, P25,000.00
for exemplary damages, and the costs.
The accused Primo Campuhan seriously assails the credibility of Ma. Corazon
Pamintuan. He argues that her narration should not be given any weight or credence
since it was punctured with implausible statements and improbabilities so
inconsistent with human nature and experience. He claims that it was truly
inconceivable for him to commit the rape considering that CrysthelÊs younger sister
was also in the room playing while Corazon was just downstairs preparing

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9Accused alleged that the charge of rape was merely concocted by Ma. Corazon Pamintuan because of
his refusal to buy medicine for her, and perform the other tasks asked of him by her relatives.

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Milo drinks for her daughters. Their presence alone as possible eyewitnesses and the
fact that the episode happened within the family compound where a call for assistance
could easily be heard and responded to, would have been enough to deter him from
committing the crime. Besides, the door of the room was wide open for anybody to see
what could be taking place inside. Primo insists that it was almost inconceivable that
Corazon could give such a vivid description of the alleged sexual contact when from
where she stood she could not have possibly seen the alleged touching of the sexual
organs of the accused and his victim. He asserts that the absence of any external signs
of physical injuries or of penetration of CrysthelÊs private parts more than bolsters his
innocence.
In convicting the accused, the trial court relied quite heav-ily on the testimony of
Corazon that she saw Primo with his short pants down to his knees kneeling before
Crysthel whose pajamas and panty were supposedly „already removed‰ and that
Primo was „forcing his penis into CrysthelÊs vagina.‰ The gravamen of the offense of
statutory rape is carnal knowledge of a woman below twelve (12), as provided in Art.
335, par. (3), of the Revised Penal Code. Crysthel was only four (4) years old when
sexually molested, thus raising the penalty, from reclusion perpetua to death, to the
single indivisible penalty of death under RA 7659, Sec. 11, the offended party being
below seven (7) years old. We have said often enough that in concluding that carnal
knowledge took place, full penetration of the vaginal orifice is not an essential
ingredient, nor is the rupture of the hymen necessary; the mere touching of the
external genitalia by the penia10
capable of consummating the sexual act is sufficient to
constitute carnal knowledge. But the act of touching should be understood here as
inherently part of the entry of the penis into the la-

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10 See the following American cases where the doctrine originated: Kenny v. State, 65 L.R.A. 316;

Rodgers v. State, 30 Tex. App. 510; Brauer v. State, 25 Wis. 413, as cited in People v. Oscar, 48 Phil. 527
(1925).

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280 SUPREME COURT REPORTS ANNOTATED

People vs. Campuhan

bias of the female organ and not mere touching alone of the mons pubis or the
pudendum.
11
In People v. De la Peña we clarified that the decisions finding a case for rape even
if the attackerÊs penis merely touched the external portions of the female genitalia
were made in the context of the presence or existence of an erect penis capable of full
penetration. Where the accused failed to achieve an erection, had a limp or flaccid
penis, or an oversized penis which could not fit into the victimÊs vagina, the Court
nonetheless held that rape was consummated on the basis of the victimÊs testimony
that the accused repeatedly tried, but in vain, to insert his penis into her vagina and
in all likelihood reached the labia of her pudendum as the victim felt his organ on the
12
lips of her vulva, or that the penis of the accused touched the middle part of her
13
vagina. 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 victimÊs 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
14
accused to be convicted of consummated rape. As the labias, which are

________________

11G.R. No. 104947, 30 June 1994, 233 SCRA 573.

12People v. Bacalzo, G.R. No. 89811, 22 March 1991, 195 SCRA 557; People v. Hangdaan, G.R. No.
90035, 13 September 1991, 201 SCRA 568; People v. De la Peña, G.R. No. 104947, 30 June 1994, 233
SCRA 573; People v. Clopino, G.R. No. 117322, 21 May 1998, 290 SCRA 432; People v. Quiñanola, G.R. No.
126148, 5 May 1999, 306 SCRA 710.
13 People v. Navarro, G.R. No. 96251, 11 May 1993, 221 SCRA 684.

14 In People v. Quiñanola (G.R. No. 126148, 5 May 1999, 306 SCRA 710) the Court held the word

„touching‰ to be synonymous with the entry by the penis into the labia declaring that „x x x the crime of
rape is deemed consummated even when the manÊs penis merely entered the labia or lips of the female
organ, or as once said

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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 perinea, 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
15
the labia minora. Jurisprudence dictates that the labia majora must be entered for
16
rape to be consummated, and not merely for the penis to stroke the surface of in a
case, by the Âmere touching of the external genitalia by the penis capable of sexual actÊ
x x x x.‰

________________

Mishell, Stenchever, Droegemueller, Herbst Comprehensive Gynecology, 3rd Ed., 1997, pp. 42-44.
15

People v. Escober, G.R. Nos. 122980-81, 6 November 1997, 281 SCRA 498; People v. Galimba, G.R.
16

Nos. 111563-64, 20 February 1996, 253 SCRA 722; People v. Sanchez, G.R. Nos. 98402-04, 16 November
1995, 250 SCRA 14; People v. Lazaro, G.R. No. 99263, 12 October 1995, 249 SCRA 234; People v. Rejano,
G.R. Nos. 105669-70, 18 October 1994, 237 SCRA 627; People v. Salinas, G.R. No. 107204, 6 May 1994,
232 SCRA 274; People v. Palicte, G.R. No. 101088, 27 January 1994, 229 SCRA 543; People v. Arce, G.R.
Nos. 101833-34, 26 October 1993, 227 SCRA 406; People v. Garcia, G.R. No. 92269, 30 July 1993, 244
SCRA 776; People v. Tismo, No. L-44773, 4 December 1991, 204 SCRA 535; People v. Mayoral, G.R. Nos.
96094-95, 13 November 1991, 203 SCRA 528, People v. Hangdaan, G.R. No. 90035, 13 September 1991,
201 SCRA 568; People v. Caballes, G.R. Nos. 93437-45, 12 July 1991, 199 SCRA. 152; People v. Bacalzo,
G.R. No. 89811, 22 March 1991, 195 SCRA 557.

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People vs. Campuhan

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.
Judicial depiction of consummated
17
rape has not been confined to the oft-quoted
„touching of the female organ,‰ but has also progressed into being
18
described as „the
introduction of the male organ into the labia of the pudendum,‰ or „the bombardment
19
of the drawbridge.‰ But, to our mind, the case at bar merely constitutes a „shelling of
the castle of orgasmic potency,‰ or as earlier stated, a „strafing of the citadel of
passion.‰
A review of the records clearly discloses that the prosecution utterly failed to
discharge its onus of proving that PrimoÊs penis was able to penetrate CrysthelÊs
vagina however slight. Even if we grant arguendo that Corazon witnessed Primo in
the act of sexually molesting her daughter, we seriously doubt the veracity of her claim
that she saw the inter-genital contact between Primo and Crysthel. When asked what
she saw upon entering her childrenÊs room Corazon plunged into saying that she saw
Primo poking his penis on the vagina of Crysthel without explaining her relative
position to them as to enable her to see clearly and sufficiently, in automotive lingo,
the contact point. It should be recalled that when Corazon chanced upon Primo and
Crysthel, the former was allegedly in a kneeling position, which Corazon described
thus:

________________

17 People v. Clopino, G.R. No. 117322, 21 May 1998, 290 SCRA 432.
18 See Note 4.
19 People v. Escober, G.R. Nos. 122980-81, 6 November 1997 281 SCRA 498.

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Q How was Primo holding your daughter?

A: (The witness is demonstrating in such a way that the chest of the accused is
pinning down the victim, while his right hand is holding his penis and his left
hand is spreading the legs of the victim).

It can reasonably be drawn from the foregoing narration that PrimoÊs kneeling
position rendered an unbridled observation impossible. Not even a vantage point from
the side of the accused and the victim would have provided Corazon an unobstructed
view of PrimoÊs penis supposedly reaching CrysthelÊs external genitalia, i.e., labia
majora, labia minora, hymen, clitoris, etc., since the legs and arms of Primo would
have hidden his movements from CorazonÊs sight, not to discount the fact that PrimoÊs
right hand was allegedly holding his penis thereby blocking it from CorazonÊs view. It
is the burden of the prosecution to establish how Corazon could have seen the sexual
contact and to shove her account into the permissive sphere of credibility. It is not
enough that she claims that she saw what was done to her daughter. It is required
that her claim be properly demonstrated to inspire belief. The prosecution failed in
this respect, thus we cannot conclude without any taint of serious doubt that inter-
genital contact was at all achieved. To hold otherwise would be to resolve the doubt in
favor of the prosecution but to run roughshod over the constitutional right of the
accused to be presumed innocent.
Corazon insists that Primo did not restrain himself from pursuing his wicked
intention despite her timely appearance, thus giving her the opportunity to fully
witness his beastly act.
We are not persuaded. It is inconsistent with manÊs instinct of self-preservation to
remain where he is and persist in satisfying his lust even when he knows fully well
that his dastardly acts have already been discovered or witnessed by no less than the
mother of his victim. For, the normal behavior or reaction of Primo upon learning of
CorazonÊs presence would have been to pull his pants up to avoid being caught literally
with his pants down. The interval, although relatively short,

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People vs. Campuhan

provided more than enough opportunity for Primo not only to desist from but even to
conceal his evil design.
What appears to be the basis of the conviction of the accused was CrysthelÊs answer
to the question of the court·

Q: Did the penis of Primo touch your organ?

A: Yes, sir.

But when asked further whether his penis penetrated her organ, she readily said,
„No.‰ Thus·

Q: But did his penis penetrate your organ?

20
A: No, sir.

This testimony alone should dissipate the mist of confusion that enshrouds the
question of whether rape in this case was consummated. It has foreclosed the
possibility of PrimoÊs penis penetrating her vagina, however slight. Crysthel made a
21
categorical statement denying penetration, obviously induced by a question
propounded to her who could not have been aware of the finer distinctions between
touching and penetration. Consequently, it is improper and unfair to attach to this
reply of a four (4)-year old child, whose vocabulary is yet as underdeveloped as her sex
and whose language is bereft of worldly sophistication, an adult interpretation that

________________

TSN, 7 October 1996, p. 20.

20

21In Dulla v. CA (G.R. No. 123164, 18 February 2000, 326 SCRA 32) the Court considered the
testimony of a child aged three (3) years and ten (10) months old sufficient and credible even if she
answered „yes‰ or „no‰ to questions propounded to her. However, the victim therein, who was much
younger than Crysthel in the instant case, demonstrated what she meant when unable to articulate what
was done to her, even made graphic descriptions of the accusedÊs penis and demonstrated the push and
pull movement made by the accused. Yet conspicuously, the Court in the Dulla case found the accused
guilty only of acts of lasciviousness on the basis of certain inconsistencies in the testimony of the victim on
whether or not petitioner took off her underwear.

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because the penis of the accused touched her organ there was sexual entry. Nor can it
be deduced that in trying to penetrate the victimÊs organ the penis of the accused
touched the middle portion of her vagina and entered the labia of her pudendum as
the prosecution
22
failed to establish sufficiently that Primo made efforts to penetrate
Crysthel. Corazon did not say, 23nay, not even hint that PrimoÊs penis was erect or that
he responded with an erection. On the contrary, Corazon even narrated that Primo
had to hold his penis with his right hand, thus showing that he had yet to attain an
erection to be able to penetrate his victim.
Antithetically, the possibility of PrimoÊs penis having breached CrysthelÊs vagina is
belied by the childÊs24 own assertion that she resisted PrimoÊs advances by putting her
legs close together; consequently, she25did not feel any intense pain but just felt „not
happy‰ about what Primo did to her. Thus, she only shouted „AyoÊko, ayoÊko!‰ not
„Aray ko, aray ko!‰ In cases where penetration was not fully established, the Court had
anchored its conclusion that rape nevertheless was consummated on the victimÊs
testimony that she felt pain, or

_________________

22In People v. Clopino (G.R. No. 117322, 21 May 1998, 290 SCRA 432) the Court rejected the argument
of the accused that he should only be convicted of either attempted rape or acts of lasciviousness. It
adopted the reasoning of the Solicitor General and declared that it was impossible for the penis of
accused-appellant not to have touched the labia of the pudendum in trying to penetrate her. However,
such logical conclusion was deduced in the light of evidence presented that accused-appellant made
determined attempts to penetrate and insert his penis into the victimÊs vagina and even engaged her in
foreplay by inserting his finger into her genitalia. The same inference cannot be made in the instant case
because of the variance in the factual milieu.
23 Decisions finding the accused guilty of consummated rape even if the attackerÊs penis merely

touched the female external genitalia were made in the context of the presence of an erect penis capable
of full penetration, failing in which there can be no consummated rape (People v. De la Pena, see Note 11).
24 See Note 16, p. 21.

25 Ibid.

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People vs. Campuhan

the medico-legal finding of discoloration in the inner lips of the vagina, or the labia 26
minora was already gaping with redness, or the hymenal tags were no longer visible.
None was shown in this case. Although a childÊs testimony must be received with due
consideration on account of her tender age, the Court endeavors at the same time to
harness only what in her story appears to be true, acutely aware of the equally
guaranteed rights of the accused. Thus, we have to conclude that even on the basis of
the testimony of Crysthel alone the accused cannot be held liable for consummated
rape; worse, be sentenced to death.
Lastly, it is pertinent to mention the medico legal officerÊs finding in this case that
there were no external signs of physical injuries on complaining witnessÊ body to
conclude from a medical perspective that penetration had taken place. As Dr. Aurea P.
Villena explained, although the absence of complete penetration of the hymen does not
negate the possibility of contact, she clarified that there was no medical basis to hold
27
that there was sexual contact between the accused and the victim.

_______________

26People v. Villamayor, G.R. Nos. 97475-76, 18 July 1991, 199 SCRA 472; People v. Palicte, G.R. No.
101088, 27 January 1994, 229 SCRA 543; People v. Sanchez, G.R. Nos. 98402-04, 16 November 1995, 250
SCRA 14; People v. Gabris, G.R. No. 116221, 11 July 1996, 258 SCRA 663; People v. Gabayron, G.R. No.
102018, 21 August 1997, 278 SCRA 78.
27 Q: Will you tell the Court, what do you mean by this No. 1 conclusion appearing in Exhibit „A‰ which

I quote „no evident sign of extra-genital physical injury noted on the body of the subject at the time of the
examination?‰

A: That means I was not able to see injuries outside the genital of the victim, sir.
Q: I presumed (sic) that you conducted genital physical exa mination on the victim in this case?
A: Yes sir.
Q: And you also made the result of the genital physical exa mination shows (sic) that there is no injury
on any part of the body of the patient, correct, Doctor?

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In cases of rape where there is a positive testimony and a medical certificate, both
should in all respects complement each other; otherwise, to rely on the testimonial
evidence alone, in utter disregard of the manifest variance in the medical certificate,
would be productive of unwarranted or even mischievous results. It is necessary to
carefully ascertain whether the penis of the accused in reality entered the labial
threshold of the female organ to accurately conclude that rape was consummated.
Failing in this, the thin line that separates attempted rape from consummated rape
will significantly disappear.
Under Art. 6, in relation to Art. 335, of the Revised Penal 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. All the elements
of attempted rape·and only of attempted rape·are present in the instant case,
hence, the accused should be punished only for it.
The penalty for attempted rape is two (2) degrees lower than the imposable penalty
of death for the offense charged, which is statutory rape of a minor below seven (7)
years. Two (2) degrees lower is reclusion temporal, the range of which is twelve (12)
years and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law,
and in the absence of any mitigating or aggravating circumstance, the maximum of
the penalty to be imposed upon the accused shall be taken from the medium period of
reclusion temporal, the range of which is fourteen (14) years, eight (8) months and (1)
day to seventeen (17) years and four (4) months, while the minimum shall be taken
from the penalty next lower in degree, which is prision mayor, the range of which is
from six (6) years and one (1) day to twelve (12) years, in any of its periods.

__________________

A: Yes sir.
Q: There was no medical basis for saying that might have a contact between the patient and the accused
in this case?
A: Yes sir (TSN, 8 October 1996, pp. 3-4).

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People vs. Campuhan

WHEREFORE, the Decision of the court a quo finding accused PRIMO „SONNY‰
CAMPUHAN Y BELLO guilty of statutory rape and sentencing him to death and to
pay damages is MODIFIED. He is instead found guilty of ATTEMPTED RAPE and
sentenced to an indeterminate prison term of eight (8) years four (4) months and ten
(10) days of prision mayor medium as minimum, to fourteen (14) years ten (10) months
and twenty (20) days of reclusion temporal medium as maximum. Costs de oficio.
SO ORDERED.

Davide, Jr. (C.J.), Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing,

Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ.,
concur.
Panganiban, J., In the result.

Judgment modified to attempted rape.

Notes.·The mere touching by the maleÊs organ or instrument of sex of the labia of
the pudendum of the womanÊs private parts is sufficient to consummate rape. (People
vs. Mahinay, 302 SCRA 455 [1999])
Well-settled is the rule that full penetration of the vaginal canal is not an essential
element of rape·the slightest introduction of the male organ into the labia of the
victim already constitutes rape. (People vs. Monfero, 308 SCRA 396 [1999])

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