Appeal from the judgment of the Court of First Instance of Leyte, finding appellant Sebastian Jervoso guilty of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua, to pay the offended party Amelita Austero the sum of P2,000.00 as moral damages, and to pay the costs.

Contending that the lone and uncorroborated testimony of the complainant falls short of the quantum of proof necessary to overcome the constitutional presumption of innocence, appellant seeks to set aside said judgment of conviction.

The version of complainant Amelita Austero, a maiden of 20 years, is that appellant, a policeman of Abuyog, Leyte, was her neighbor at Real Street in the poblacion of Abuyog.  In the evening of April 4, 1968, she was alone in their house, preparing supper.  Her father Quirino Austero had not yet returned from the Abuyog Emergency Hospital where he was employed, while her mother was visiting a neighbor who lived across the street from their house.  At 7:00 o'clock that night, Amelita went down to fetch water from the well of a neighbor, Cresencia Aller.  On her way thereto, she saw the appellant in a police uniform standing near the door of his house.  Appellant approached her and immediately grabbed her left hand.  At the same time he drew his gun and, pointing it at her, warned her not to shout.  He then dragged her on the ground to the toilet of his house about 12 meters away.  Inside the toilet, appellant slapped her twice on the face and ordered her to remove her panty.  When she refused, he raised her dress and forcibly pulled down her panty which was torn in the process.  At that juncture, he returned his gun into the holster.  He in­serted his right middle finger into her sexual organ and lifted it, causing her intense pain.  Holding her right shoulder, he tripped her with his right foot and pushed her violently to the floor.  While she was in a sitting position, he placed his legs over her right foot and removed her panty.  After unzipping his pants, he released his right middle finger from her vagina, then spread her legs apart and inserted his penis into her sexual organ.  According to Amelita, while the appellant was doing the push and pull movement, "I tried to struggle, but could not free myself because he was on top of me."^[1] She further declared that all the while that she was being abused, she did not shout for help.^[2]

After satisfying his lust, appellant again pulled out his gun from the holster and warned her not to tell her parents about the incident, otherwise he would kill her.  Such threat notwithstanding, she informed her mother immediately after the latter's arrival in the house.  The following day, April 5, 1968, Amelita went with her mother to Tacloban City to attend the graduation of her sister Aurora.  They returned to Abuyog on April 8.

On April 9, 1968, complainant and her mother reported the incident to Mayor Traya of Abuyog.  The latter, however, told them that since the crime was a serious one, they should file their complaint with the authorities in Tacloban City.  Thus, fifteen (15) days after the incident, or on April 19, 1968, complainant, accompanied by her mother, proceeded to Tacloban City where she filed a complaint with Assistant Provincial Fiscal Matol.

On April 22, 1968, complainant submitted herself to a physical examination by Dra. Pastora Redoña, resident physician of the Leyte Provincial Hospital in Tacloban City.  The doctor's findings are as follows:

"Pubic hair - moderate in amount, black in color.

Hymen - only remnants and serrated.

Vaginal orifice - admits 2 fingers (3 cm.) smoothly.

Vaginal floor - with thick milky material resembling condensed milk.

Vaginal smear - negative for sperm cells."

Under cross-examination, Amelita was confronted with the following testimony she had given during the preliminary investigation conducted on May 20, 1968 be­fore First Asst. Fiscal Zoila N. Redoña, to wit:

Atty. Benedicto [to witness]:

Q :    You allowed him to have sexual intercourse with you for fifteen minutes?

A :     Yes, sir.

Q :    And you reached the climax together with him, is that correct?

A :     Yes, sir.

Q :    After that he continued pushing out and inside his penis, is that correct?

A :     No, sir.

Q:     How long did you come to a climax - after he inserted his penis inside your vagina?

A :     After fifteen minutes.

Q :    After you reached the climax, he continued pulling in and out his organ, is that correct?

A :     (answered already)

Q :    After you reached the climax together with Jervoso in that sexual intercourse, he continued having sexual intercourse with you, is that correct?

A :     No more.

Complainant did not deny that she reached a climax during her sexual intercourse with appellant.

We find the appeal impressed with merit.

It is a well-established rule that, where the charge of rape is based solely upon the testimony of the complainant, the Court must exercise the greatest degree of care and caution in scrutinizing such testimony, and the person charged with the offense should not be con­victed unless the complainant's sincerity and candor are free from suspicion.^[3]

A meticulous review of the records reveals certain significant circumstances which render complainant's charge of force and intimidation highly dubious and improbable.

[1] Complainant's allegation that she was dragged on the ground over a distance of 12 meters, that she was slapped and then pushed down to the toilet's floor with great force is belied by the medical findings.  Dr. Redoña, who conducted a physical examination of complainant, failed to find any abrasion, laceration or contusion on her body.  The absence of such physical evidence casts serious doubts on the charge of force and intimidation; for "physical evidence is proof of the highest order and speaks more eloquently than all the witnesses put together".^[4]

[2] According to complainant, she struggled and resisted the appellant's advances.  There is, however, nothing in her entire testimony to describe the manner by which she struggled and resisted.  Her supposed resistance, alleged in general terms, is a mere conclusion which cannot suffice to sustain a judgment of conviction.^[5]

[3] It is undisputed that during the entire incident, even after appellant had returned his gun to its holster, complainant did not shout for help or make any outcry, although there were several houses close to the scene of the crime.  Neither did she make any serious attempt to prevent appellant from insert­ing his organ into her vagina.  This posture passivity on her part does not square with experience and human nature.

In the crime of rape, alleged to have been com­mitted by force, it is essential that the element of voluntariness on the part of the victim be absolutely lacking.  Where there is an indication that the offended party contributed in some way in the consummation of the sexual intercourse or had shown any willingness, even if half-hearted, the complaint must be dismissed.^[6]

[4] On the following day, Amelita, apparently unperturbed by her harrowing experience of the previous day, accompanied her mother to Tacloban City to attend the graduation of her sister.  They returned to Abuyog on April 8.  But during their four-day sojourn in Tacloban City they did not report the crime to the fiscal's office.  It was only on April 19, or 15 days after the incident, that complainant returned to Tacloban to file her complaint before Asst. Provincial Fiscal Matol.  Such unexplained delay in denouncing the appellant seriously impairs her sincerity and credibility.

[5] Finally, by complainant's own admission, she reached a climax while she was being raped.  This circumstance disproves the charge of force and coercion, for it is well-nigh impossible for any woman to expe­rience orgasm while being assaulted by a rapist.

Withal, the facts proven at the trial failed to demonstrate to a moral certainty that appellant employed force and intimidation.

ACCORDINGLY, the judgment of conviction is hereby set aside, and appellant Sebastian Jervoso acquitted of the crime charged.  Cost de oficio.

 SO ORDERED.

Makasiar, (Chairman), Concepcion, Jr., Relova, and Gutierrez, Jr., JJ., concur.
Aquino, J., see dissent.
Guerrero, J., joins J. Aquino in his dissenting opinion.
Abad Santos, J., on leave.
De Castro, J., on sick leave.

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^[1] TSN, May 18, 1970, p. 38.

^[2] TSN, May 18, 1970, p. 33.

^[3] People vs. Lacuna, 87 SCRA 372; People vs. Fausto, 51 Phil. 852.

^[4] People vs. Berdaje, 99 SCRA 388.

^[5] People vs. Lacuna, 87 SCRA 372.

^[6] People vs. Joven, 64 SCRA 126; People vs. de Dios, 8 Phil. 279.

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