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In November 1998, Nemesio Bon was indicted for allegedly raping a minor child in 1997 in Caloocan City. During trial however, the minor complainant testified that what Bon actually did was he used his finger to poke her private part and that he licked her private part.
ISSUE: Whether or not Bon may be convicted of rape.
HELD: No. There appears to be no carnal knowledge which is required for a conviction of rape. However, using the variance doctrine under Rule 120 of the Rules of Court, Bon may still be convicted of the lesser offense of Acts of Lasciviousness which is necessarily included in the charge for rape. Sec. 4, Rule 120 provides:
Judgment in case of variance between allegation and proof. — When there is variance between the offense charged in the complaint or information, and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in that which is proved.