A Digest of Case Law on the Human Rights of Women - Asia Pacific ...

Al-Amin and 5 others v The State (Bangladesh)
O-Shishu Nirjatan (Bishesh Bidhan) Ain (XVII <strong>of</strong> 1995) (“the Ain”). Victim A then
provided a statement (under section 164 <strong>of</strong> the Code <strong>of</strong> Criminal Procedure) that
she had been raped and photographed whilst naked.
The Trial Court (the Special Court on Violence against Women and Children) held
that the prosecution had failed to prove the charge <strong>of</strong> rape. The main reasons for the
decision were Victim A’s delay in filing a First Information Report and the fact that
the First Information Report did not state that she had been raped. Further, Victim
A’s evidence was uncorroborated by Victim A1 who testified to the “outraging <strong>of</strong>
the modesty” <strong>of</strong> Victim A, but not to her rape. Finally, the Trial Court held that
there was no physical evidence <strong>of</strong> rape. The appellants were instead convicted <strong>of</strong>
“outraging the modesty” <strong>of</strong> Victim A under section 9(ka) <strong>of</strong> the Ain, rather than
rape.
The appellants appealed the decision <strong>of</strong> the Trial Court. They argued that they
were not guilty <strong>of</strong> “outraging the modesty” <strong>of</strong> Victim A on the basis that Victim
A had delayed in making a First Information Report, that she had failed to make
a complete report <strong>of</strong> the incident in the First Information Report, and that her
evidence was uncorroborated. The appellants argued that the above reasons
provided sufficient grounds upon which to acquit them <strong>of</strong> the crime <strong>of</strong> “outraging
the modesty” under section 9(ka) <strong>of</strong> the Ain.
Decision
The Court upheld the decision <strong>of</strong> the Trial Court and reaffirmed the convictions
for “outraging the modesty”. The Court held that there was sufficient evidence
available to the Trial Court to have found the appellants guilty <strong>of</strong> rape. However,
because the prosecution had not appealed the acquittal on the charge <strong>of</strong> rape, the
Court was prevented from converting the order <strong>of</strong> acquittal for rape into an order
<strong>of</strong> conviction. The appellants remained convicted <strong>of</strong> the lesser charge <strong>of</strong>”outraging
the modesty” <strong>of</strong> Victim A.
The Court found that Victim A’s delay in making a First Information Report could
have been due to a number <strong>of</strong> reasons, including that the crime <strong>of</strong> rape affects
the reputation <strong>of</strong> the victim and the honour <strong>of</strong> her family. Accordingly, it was
understandable that, following such a traumatic experience, Victim A may have
been reluctant to report a crime which was embarrassing and shameful.
The Court found that the inconsistency between Victim A’s First Information
Report and her statement under section 164 <strong>of</strong> the Code <strong>of</strong> Criminal Procedure was
not a reason for acquitting the appellants. The First Information Report should not
be treated as the definitive statement <strong>of</strong> the prosecution’s evidence. Rather, it is the
evidence produced to the court at the time <strong>of</strong> trial that is the legal and substantive
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