This is an appeal from the judgment rendered by the Regional Trial Court, Branch 63, Calauag,

Quezon in Criminal Case No. 1518-C, finding Norberto Villagracia, Elmer Paglinawan, Alfonso
Pastoral, Nixon Ledesma, Nelson Ledesma, and Wilfredo V. Gampa guilty beyond reasonable
doubt of Robbery with Rape and sentencing them to suffer the penalty of reclusion perpetua, to
indemnify, jointly and severally, the offended spouses, Cenon Villasanta and Thelma Villasanta
in the amount of P14,700.00 and Thelma Villasanta in the amount of P20,000.00, and to pay the
costs of the suit (Decision, p. 16; Rollo, p. 40).

In said criminal case, the five accused were charged with Robbery with Rape, committed as
follows:

That on or about the 23rd day of September 1987, at Barangay Pamampangin, Municipality of
Lopez, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with short firearms of unknown caliber and a fan knife and
forming a band, with intent to gain and with force upon things, by means of force, intimidation
and violence and taking advantages of nighttime, conspiring and confederating together and
mutually helping one another, did then and there willfully, unlawfully and feloniously enter the
house of spouses Thelma Villasanta and Cenon Villasanta, and once inside, take, steal and carry
away therefrom the following personal properties, to wit:
Cash money----------------------------------------------- P8,000.00
one (1) wristwatch citizen------------------------------ 1,200.00
one (1) lady wristwatch--------------------------------- 1,000.00
two (2) wristwatch (old model)------------------------ 3,000.00
two (2) wedding ring------------------------------------- 200.00
one (1) pair of earrings---------------------------------- 1,300.00
T o t a l14,700.00
with a total value of FOURTEEN THOUSAND SEVEN HUNDRED (P14,700.00) PESOS,
Philippine currency, to the damage and prejudice of the said owners in the aforesaid sum; that
on the occasion thereof said accused, conspiring and confederating together and mutually
helping one another, by means of force, threats violence and intimidation and with lewd design,
did then and there willfully, unlawfully and feloniously take turn in having carnal knowledge of
said Thelma Villasanta, against the latters will (Rollo, pp. 8-9).

Upon arraignment, all the accused pleaded not guilty and trial ensued.

On April 3, 1990 and before the judgment was promulgated, accused Elmer Paglinawan died.

The trial court found that on September 23, 1987, Thelma Villasanta arrived in Lopez, Quezon,
from Manila at about 8:00 A.M. Instead of proceeding to her house in Barrio Pamanpangin, she
stayed at the poblacion to attend to some business. She returned home at 8:00 P.M., bringing
with her raw materials for her basket weaving business. At that time, her husband, Cenon, was
sick and resting on the second floor of the house while two basket-weavers, Eliseo Gacelo and
Rodrigo Llaneta, were working overtime at the ground floor, which was lighted by a Coleman gas
lamp. Shortly after Thelma entered the house, six men, with their faces half-covered by
handkerchiefs barged inside. Three of the intruders brandished firearms and the other three
carried knives. One poked a gun at her head and another pointed a knife to her neck. The two
basket-weavers were told to lie down on the floor and were then hog-tied. One of the accused put
off the gas lamp. Two of the accused went upstairs and hog-tied Cenon, after maltreating him.
They also divested Cenon of his watch and ransacked the house (Decision, pp. 5-8; Rollo, pp. 29-
32).

The accused were able to take P8,000.00 in cash, a pair of earrings, a wristwatch and two rings
with a total value of P14,700.00.

When the accused left the house, they dragged Thelma along with them. Once on the street, the
accused removed their masks. They brought Thelma to a grassy place, where she was ordered to
undress. She was able to run away but was chased and caught by her captors, who again pointed
their guns and knives at her. Two of the accused held her hands and two others held her legs. After
Nelson Ledesma removed her panty and half-slip, he raped her. The other six followed suit.

In the trial court, appellants interposed their respective alibis and denials. They claimed that they
were in their respective houses when the incident happened. They also claimed that they were
maltreated by the police authorities and forced to confess their participation in the crime charged.
Furthermore, they alleged that they were not apprised of their constitutional rights before their
statements were taken.

On the basis of the evidence presented, the trial court convicted the accused of the crime charged.
Likewise, the trial court considered the presence of the aggravating circumstances of nighttime
and band. In their brief, appellants fault the trial court in finding:

x x x THAT THE ACCUSED-APPELLANTS IDENTITIES AS THE PERPETRATORS OF THE

II

x x x THE ACCUSED-APPELLANTS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME

Appellants now claim that Thelma Villasanta failed to identify them with certainty as the
perpetrators of the crime charged. They contend that: (1) it was unnatural on their part to have
removed their masks outside the house, when they did not remove them while they were inside
the house, where it was pitch black; (2) it was improbable for her to have recognized the appellants
because the place where she was brought was dark and covered with bushes and coconut trees;
and (3) appellants were not placed in a police line-up but were merely presented by the police
investigators to the complainants (Appellants Brief, pp. 7-9).

Contrary to their claim, appellants removing of their masks once they left the house of the
Villasantas was a natural behavior. As explained by the trial court:

x x x The Court is also convinced that when the robbers left the house of the Villasanta (sic) they
removed their masks. This the Court finds convincing for indeed, it would appear awkward for
the robbers to be still wearing masks while they were walking along the street (Decision, p. 13;
Rollo, p. 37)
Bereft of merit is the contention of the appellants that they were merely presented by the
investigators to the complainants. There is no rule requiring that before a suspect can be identified
as the culprit, he should first be placed in a police line-up and then pinpointed by the victim. What
is important is the positiveness of the victim that the persons charged were the malefactors. Such
identification goes to the credibility of the witness which was tested at the trial.

This positive identification of the victim was bolstered when appellants removed their masks
while walking on the street, for the place was illuminated by moonlight. In People v. Gamboa, 145
SCRA 289 [1986], this Court ruled that the light of the moon is sufficient for a person to identify
another. Suffice it to say, if identification of persons is possible even by the light of the stars, with
more reason that one could identify persons by moonlight (People v. Pueblos, 127 SCRA 746
[1984]).

Appellants defense of alibi cannot be given weight in view of the clear identification made by the
victim that they were the perpetrators of the crime. Alibi is one of the weakest defenses that can
be resorted to for it can easily be fabricated (People v. Carcedo, 198 SCRA 503 [1991]).

Appellants also failed to support their claim that they were tortured into admitting the crime.
Their allegation, except for Norberto Villagracia, was not supported by any medical certificate.
However, the medical certificate submitted by Villagracia cannot be admitted as evidence in the
absence of the corroborating testimony of the physician who examined him (People v.
Marcedonio, 192 SCRA 579 [1991]).

The plaint that the police investigators did not provide appellants with a counsel while their
statements were taken, is mooted because the trial court disregarded said statements for failure
of the police investigators to inform them of their right to counsel. The trial court also disregarded
the counter-affidavit of Pastoral because the same was prepared by the police. However, even in
the absence of the extrajudicial confessions obtained from the appellants, there is sufficient
evidence which points to them as the perpetrators of the crime.

We have repeatedly ruled that factual findings of the lower court, including the assessment of the
testimonies of the witnesses, are entitled to great weight on appeal when supported by the
evidence (People v. De Guzman, 199 SCRA 35 [1991]; People v. Placido, Jr., 199 SCRA 410 [1991]).

We agree with the trial court that the crime committed by the appellants is Robbery with Rape
defined and penalized under Article 294 (2) of the Revised Penal Code, which reads:

Any person guilty of robbery with the use of violence against or intimidation of any person shall
suffer: The penalty of reclusion temporal in its medium period to reclusion perpetua, when the
robbery shall have been accompanied by rape or intentional mutilation, or if by reason or on
occasion of such robbery, any of the physical injuries penalized in subdivision 1 of Article 263
shall have been inflicted; Provided, however, that when the robbery accompanied with rape is
committed with the use of a deadly weapon or by two or more persons, the penalty shall be
reclusion perpetua to death (As Amended by PD No. 767).

The law uses the phrase when the robbery shall have been accompanied by rape which means that
the offender must have the intent to take the personal property belonging to another with intent
to gain, and such intent must precede the rape (Reyes, II Revised Penal Code, p. 612, 1987 ed).
In this case, appellants employed violence against and intimidation of persons when they divested
the Villasanta spouses of cash and other valuables. Three of the appellants were armed with short
firearms and the other three carried fan knives.

That appellants conspired to commit the detestable acts can be inferred from their behaviors,
which revealed their common purpose and their unity in its execution (Siton v. Court of Appeals,
204 SCRA 473 [1991]).

However, the trial court erred in finding the presence of the aggravating circumstance of band.
The circumstance that the crime was committed with the use of a deadly weapon or by two or
more persons was already taken into account when the law imposed the penalty of reclusion
perpetua to death for such offense.

An appeal in a criminal case opens the whole case for review and this includes the review of the
penalty and indemnity (People v. Godines, 196 SCRA 765 [1991]). Every circumstance in favor of
the accused should be considered (Sacay v. Sandiganbayan, 142 SCRA 593 [1986]).

In this case, the trial court failed to consider the age of appellant Nixon Ledesma when the crime
was committed. At the time he testified on May 17, 1989, he stated that he was only 15 years old
(TSN, May 17, 1989, p. 31). No contradictory evidence was presented by the prosecution. So, when
the crime was committed on September 23, 1987, or more than a year before he was presented as
a witness, Nixon Ledesma was less than 15 years old.

In People v. Lugto, 190 SCRA 754 [1990], we held that the accused has the burden of proof that
he was a minor at the time of the commission of the crime. However, in People v. Tismo, 204
SCRA 535 [1991], we upheld appellants claim that he was 17 years old at the time the crime was
committed even without any proof to corroborate his testimony. Considering that the prosecution
failed to present contradictory evidence, we applied to appellant therein the privileged mitigating
circumstance of minority under the second paragraph of Article 13 of the Revised Penal Code.

Lugto appears to be an aberration from the long line of decisions antedating it. From U.S. v.
Bergantino, 3 Phil. 118 [1903] to People v. Ebora, 141 SCRA 282 [1963], we have consistently ruled
that, although the accused did not offer any evidence to support his claim of minority, this fact
will remain as such, until disproved by the prosecution (See also U.S. v. Barbicho, 13 Phil. 616
[1909]; U.S. v. Agadas, 36 Phil. 246 [1917]; People v. Ebora, 141 SCRA 282 [1968]; People v.
Bernalde, 139 SCRA 426 [1985]).

We, therefore, rule that in view of his minority, appellant Nixon Ledesma is entitled to a two-
degree reduction of his penalty as provided for in Article 68(1) of the Revised Penal Code.

Inasmuch as Nixon Ledesma is now more than nineteen years old, he is no longer entitled to a
suspended sentence under Article 192 of the Child and Youth Welfare Code, (P. D. 603, as
amended by P. D. No. 1179 and P.D. No. 1210).

The penalty for Robbery with Rape under Article 294(2) of the Revised Penal Code, is reclusion
perpeta to death. However, the 1987 Constitution, proscribed the imposition of the death penalty,
so the trial court was correct in imposing the penalty of reclusion perpetua to the appellants, other
than appellant Ledesma.
With regard to Nixon Ledesma, the reduction of his penalty by two degrees should be counted
from the penalty provided by law for the offense, which is reclusion perpetua to death. The penalty
next lower to the said penalty imposed by law is recIusion temporal and the penalty two degrees
lower thereto is prision mayor (People v. Espejo, 36 SCRA 400 [1970]; People v. Jose, 71 SCRA
273 [1976]; Padilla, Criminal Law, Book I, 1988 ed., p. 89).

Considering the presence of the aggravating circumstance of nighttime, the penalty should be in
its maximum period, which is within the range of ten years and one day to twelve years. Applying
the Indeterminate Sentence Law, we further reduce the penalty by one more degree, which is
prision correccional, and that is within the range of six months and one day to six years.

The records show that Elmer Paglinawan died on April 3, 1990 while under detention. The fact of
his death was reported by the provincial warden to the trial court, which should have dismissed
the case against said accused. Under Article 89(1) of the Revised Penal Code, the criminal liability
of an offender is totally extinguished by his death as to the personal penalties; while the pecuniary
liability therefor is extinguished when the offender dies before final judgment.

Taking into account the nature of the crime and the fact that she was raped by the six accused,
causing her mental anguish, moral shock, besmirched reputation and social humiliation, the
indemnity, in the concept of moral damages, is increased to P50,000.00 (People v. Grefiel, 215
SCRA 596 [1992]).

WHEREFORE, the decision appealed from is AFFIRMED with the MODIFICATION that: (1)
Nixon Ledesma is sentenced to an indeterminate penalty of six (6) years, of prision correccional,
as minimum, to ten (10) years and one (1) day of prision mayor, as maximum; (2) in view of Elmer
Paglinawans death, the case against him is DISMISSED; and (3) the award for damages to Thelma
Villasanta is increased to P50,000.00.

SO ORDERED.