Pertinent portions of the CA Decision, which the Court quotes with approval, are as follows: xxx xxx xxx In the present case, the combination of all the circumstances presented by the prosecution does not produce a conviction beyond reasonable doubt against Edwin for the crime of rape. xxx xxx xxx Here, the evidence of the prosecution failed to establish that Edwin had carnal knowledge of AAA. Michael's testimony did not show that Edwin had carnal knowledge with AAA. He only testified that he saw Edwin holding AAA's vagina. x x x Jomie corroborated Michael's testimony, x x x Clearly, Michael and Jemie's testimonies failed to prove that Edwin inserted his penis [into] AAA's vagina. What they saw was only his act of fondling AAA's private part which is not rape. BBB's testimony that AAA admitted to her that she was sexually molested by Edwin cannot be treated as part of the res gestae. To be admissible as part of the res gestae, a statement must be spontaneous, made during a startling occurrence or immediately prior or subsequent thereto, and must relate to the circumstance of such occurrence. Here, AAA did not immediately tell BBB of the alleged rape. It was only the next day that she told her mother of the incident after she was asked what was wrong. Verily, the declaration was not voluntarily and spontaneously made as to preclude the idea of deliberate design. xxx xxx x x x[17] Nonetheless, the Court agrees with the ruling of the CA that accused-appellant is guilty of the crime of acts of lasciviousness. Under the variance doctrine embodied in Section 4,[18] in relation to Section 5,[19] Rule 120 of the Rules of Criminal Procedure and affirmed by settled jurisprudence,[20] even though the crime charged against the accused was for rape through carnal knowledge, he can be convicted of the crime of acts of lasciviousness without violating any of his constitutional rights because said crime is included in the crime of rape.