Part 4 of the judgement dealing with the case of Abul Kalam Azad, dealing with three offenses of crimes against humanity
XIX. Adjudication of Charges relating to crimes against Humanity
171.Charge nos. 1,2,3,4, 5,6 and 8 relate to the acts of murder, rape, abduction, confinement and torture constituting the offence of crimes against humanity. Now, we are going to make successive discussion for adjudicating these seven charges based on alleged independent event of criminal acts.
Adjudication of Charge No. 01 [Abduction, confinement and torture of Ranjit Nath @ Babu Nath
172.Summary Charge: Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by accomplices is alleged to have abducted , tortured and confined Ranjit Nath @ Babu Nath , during the first week of June ,1971 as narrated in the charge no.01 and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act
Witnesses
173.Prosecution examined only one live witness (P.W.5 Ranjit Kumar Nath) in support of this charge. He is the victim of the offence of abduction, confinement and torture caused to him. He has narrated some relevant facts as well while deposing on dock. P.W.15 Probodh Kumar Sarker is a hearsay witness who has corroborated P.W.5 relating to the fact of his (P.W.5) confinement and torture at the army camp.
Discussion of Evidence
174.P.W.5 Ranjit Kumar Nath, the victim, as alleged in the charge no. 01, at the out set, stated how the Pakistani army was welcomed by the accused and his accomplices in April 1971 and how the accused used to maintain association with the Pakistani army staying at camps set up at different places in Faridpur town. He also stated how in association with the accused, the Pakistani army used to apprehend and bring pro-liberation people from the town and villages and tortured and killed them at the camp set up at Faridpur stadium.
175. P.W.5 stated further that Jamat Secretary General Mujahid, Bachchu Razakar (accused) and some Biharis (Urdu speaking people) welcomed the Pakistani army when they arrived in Faridpur on April 21, 1971. They [accused and his accomplices] took the army to Prabhu Jagatbandhu Ashram (temple) where the Pakistani army men shoot eight priests dead while Mujahid and Bachchu (accused) were with them, added the 62-year-old witness P.W.5 from Faridpur.
176.P.W.5 Ranjit Kumar Nath has narrated the incident of his confinement and torture caused to him in Pakistani army camp. In stating it, P.W.5 has testified that during the first week of June 1971 when he was approaching the town, one Habi Matabbar, terming him a freedom fighter, handed him over to Abul Kalam Azad (accused), Abul Mia and Kalu Bihari at East Khabashpur. After beating him up, they took him to Faridpur Circuit House by a rickshaw and he saw Major Akram Koraishi, a Pakistani army official, Mujahid, Afzal and other Razakars were holding a meeting there, P.W.5 added. On seeing him Mujahid had told “ he is a freedom fighter, he is a Hindu” and asked Azad (accused) to take him away and then Azad (accused) and his associates blindfolded him (P.W.5 Ranjit) and took him to Faridpur Zilla School ground and put him under a palm tree. After a few minutes a jeep went there and someone in the jeep said in Urdu:”Don't shoot him. Hand him over to the Biharis and slaughter him in the morning”. He was then taken near a Bihari colony of Mollah Bari Road.
177.P.W.5 Ranjit Kumar Nath has further narrated that thereafter, hanging him up side down from a kadama tree, they [Azad and others] had beaten him up for one hour and one of his teeth and a bone of his nose were broken. Later, they confined him in a house inside the Bihari colony and around midnight he (P.W.5 Ranjit) somehow escaped breaking through a window.
178.Defence could not controvert what has been deposed by P.W.5 on material particular incriminating the accused with the acts related to ‘abduction, confinement and torture’ caused to him. In cross- examination, P.W.5 in reply to question put to him stated that since prior to the War of Liberation he knew accused Abul Kalam Azad @ Bachchu as he had attended anti Awami League meetings and processions and at that time he was a student of Faridpur Rajendra College. It is the reason why P.W.5 could recognize the accused Abul Kalam Azad@ Bachchu at the army camp at Faridpur circuit house, after he was taken there. Thus his testimony involving the accused with the acts constituting the offence of inspires credence.
179.In cross-examination, it has been confirmed that the P.W.5 was a freedom fighter and he participated in many operations and had fought under Major Manzur of sector no. 8. P.W.5 has also stated in reply to a question elicited in cross-examination that accused Bachchu had actively participated in the process of formation of ‘Razakar’ in Faridpur and in 1971 he used to stay in Faridpur town and subsequently he was the head of Al-badar of Faridpur town.
180.P.W.15 Probodh Kumar Sarker has testified that Bachchu Razakar (accused) apprehending Ranjit Kumar Nath (P.W.5, the victim of charge no.1) from Khabashpur area brought him to circuit house and afterwards, he was kept confined at the house of one Rashid Mia which was nearer to his(P.W.15) own house and eventually he (P.W.5) managed to escape there from. In his cross-examination, it is neither denied nor refuted by the defence. Rather, it is established from evidence of the victim P.W.5 that the accused and his accomplices after causing inhuman torture kept him confined in a house of one Rashid Mia inside the Bihari colony and around midnight he (P.W.5 Ranjit Kumar Nath) escaped breaking through a window. Thus, from the version made by the P.W.15 Probodh Kumar Sarker it is presumed that he, as a neighbour of Rashid Mia, had opportunity to know about the fact of confining P.W.5 Ranjit Kumar Nath in his (Rashid Mia) house. Therefore, the version of P.W.15 is considered to be corroborative in nature, on material particular. Furthermore, in cross-examination of both the P.W.s it has been confirmed that the accused was earlier acquainted to these P.W.s and P.W.15 leaving no occasion to taint the identification of the accused even though the accused has been absconding.
Evaluation of Evidence and Finding
181. It has been argued by the learned state defence counsel that for corroborating the version in relation to the event of crimes narrated in charge no.1 made by P.W.5 no other direct witness has been examined by the prosecution and as such evidence of a single witness does not qualify the charge proved. Evidence of P.W.15 Probodh Kumar Sarker is not adequate to corroborate the narration of P.W.5 Ranjit Kumar Nath, the victim.
182.We are not with what has been argued by the learned state defence counsel. First, evidence even of a single witness is enough to prove the accusation if it inspires credence and acceptance of and reliance upon uncorroborated evidence, per se, does not constitute an error in law. Second, P.W.5 himself is the victim of wrongs caused to him. Third, considering the context, the offence was not an isolated one and it happened in organized manner by the Pakistani army and its local accomplices including the accused and as such it was not possible and natural for else one to experience the fact of abduction, confinement and torture done to P.W.5. Fourth, testimony of P.W.15 carries reasonable probative value as he had opportunity to know what he has deposed relating to the fact of torturing and confining P.W.5 Ranjit Kumar Nath by the accused in the house of Rashid Mia at Bihari colony. Finally, we do not find any earthly reason to disbelieve P.W.5 who himself is the victim of the offence alleged in charge no.1 and thus his testimony does not appear to have been stained by any flaw.
183. From the evidence of P.W.5 , the victim of the offence of abduction, confinement and torture and P.W.15, it is proved that after apprehending him(P.W.5) he was brought to the Pakistan army camp at Faridpur circuit house where he found accused Abul Kalam Azad @ Bachchu holding a meeting with Major Koraishi. Mujahid , Afzal and others and there from, on direction of Mujahid the accused Abul Kalam Azad @ Bachchu and his associates blindfolded him (P.W.5 Ranjit) and took him to Faridpur Zilla School ground and put him under a palm tree and had beaten him up for one hour and then he was kept confined in a house inside the Bihari colony and around midnight he (P.W.5 Ranjit) escaped breaking through a window. Defence could not dislodge this incriminating version in any manner.
184.Therefore, it has been proved beyond reasonable doubt that accused Abul Kalam Azad @ Bachchu a close associate of the Pakistani army and a member of Razakar force was not only much more pro-active in encouraging the wrongs caused to him (P.W.5) but he himself physically participated to the commission of offence of torture, confinement, and inhuman acts caused to Ranjit Nath (P.W.5). Why P.W.5 was targeted? The answer is simple. At the army camp at Faridpur circuit house, according to P.W.5, he found Mujahid (a potential leader and the President of the then East Pakistan Islami Chatra Sangha), on seeing him, had told “he is a freedom fighter, he is a Hindu” and then handed him over to accused Abul Kalam Azad @ Bachchu.
185.We have got it confirmed in his (P.W.15) cross-examination that he was a freedom fighter. It is a fact of common knowledge that Pro-liberation Bengali civilians, Hindu Community, were the main target of the perpetrators in 1971. This was the reason of atrocious acts of accused forming part of attack targeting P.W.5 Ranjit Kumar Nath.
186.We have already given our view that the context itself as reflected from policies adopted by the Pakistani army and its local pro-Pakistan political organization , chiefly the Jamat E Islami (JEI) and ‘auxiliary forces’ is sufficient to prove the existence of the notion of ‘systematic attack’ on Bangladeshi self-determined population in 1971, during the War of Liberation. This context unerringly prompts us in arriving at decision that the atrocities committed upon P.W.5 Ranjit Kumar Nath was a part of systematic attack constituting the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973.
187.Accused Abul Kalam Azad @ Bachchu is thus criminally liable under section 4(1) of the Act of 1973 for physical participation and also for providing substantial contribution to the commission of offence of abduction, confinement and torture as crime against humanity as specified in section 3(2)(a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act
Adjudication of Charge No. 02
[Abduction, confinement and torture on Abu Yusuf Pakhi] 188.Summary Charge : Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by accomplices is alleged to have abducted , tortured and confined Abu Yusuf Pakhi , on 26 July 1971 during the war of liberation, as narrated in the charge no.02 and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.
Witnesses
189.Prosecution examined three witnesses including one live witness P.W.18 Abu Yusuf Siddique @ Pakhi in support of this charge. P.W.18 is the victim of torture and inhuman treatment caused to him. He has also narrated some facts relevant to focus the role of accused and atrocious feature prevailing in Faridpur in 1971, while deposing on dock. P.W.7 Md. Amir Hossain and P.W.15 Probodh Kumar Sarker have testified corroborating the fact of confining P.W.18, the victim. Of them P.W.7 was, at the relevant time, one of detainees at the crime camp and P.W. 15 later on, learnt the event from the victims (detainees of the camp) including P.W.18
Discussion of Evidence
190.Before narrating the event and facts relevant to the event as listed in the charge no.2, P.W.18 a war-wounded freedom fighter Abu Yusuf Siddique @ Pakhi has testified on some related facts. He stated that Abul Kalam Azad used to select detainees of a torture centre in Faridpur for Pakistani army to kill them during the Liberation War. He stated that Azad, also known as Bachchu Razakar who used to accompany the Pakistani army all the time and also used their vehicles. Abu Yusuf Siddique alias Pakhi is one of the detainees of the army camp established at Faridpur Stadium during 1971.
191.The 61-year-old P.W.18 Abu Yusuf Pakhi has narrated the description of the torture he endured during his 43-day detention at the Pakistani army camp at Fairdpur Stadium. He deposed that the Pakistani army entered Faridpur town on April 21 and on their way they killed eight priests of Prabhu Jagatbandhu Ashram [temple].
192.P.W.18 in narrating the fact of his abduction has stated that on April 22, 1971, Kamaruzzaman Jasu, cousin of Azad (accused), picked him (P.W.18) and his brother from the intersection of Bhanga Road and handed them to the army. And then they were produced before Pakistani Major Akram Koreshi at Faridpur Circuit House where he saw Pakistani army shooting a few people to death on the east side of the Circuit House. They were then brought to Major Akram Koraishi of the camp and his brother (who was apprehended with P.W.18) had talk with Major Koraishi in English and then they were released from the camp by another Pakistan army’s Baluch Major and then he joined the war of liberation, P.W.18 Yusuf added. This fact, as stated by P.W.18, is not related to the charge no.2.
193.The above incident happened prior to the event narrated in the charge. However, from the above description we have got that Pakistani army had set up a camp at circuit house which was in fact a ‘torture and killing camp’ and their pet civilian accomplices aided them to the accomplishment of atrocities. This pertinent fact remains undisputed in cross-examination.
194.Now let us come to the event as narrated in charge no.2. P.W.18 while deposing on the event related to the charge, has narrated that he sustained bullet injury on July 24 when they attacked Razakars who were in position at a bridge at Arpara in Jessore. Razakars later apprehended him from Chandra High School area of Alfadanga of Faridpur on July 26 and handed him over to the Pakistani army camp at Faridpur Stadium. On the following morning Major Akram Koreshi went there along with Abul Kalam Azad alias Bachchu. P.W.18 Yusuf further stated that he was tortured in a ‘torture cell’ where he saw many persons [detainees] were slaughtered. His hand and ribs were broken resulting from torture caused to him. He cannot narrate the torture in words, said P.W.18 Yusuf as tears rolled down his cheeks.
195.Thus, we have found that ‘Razakars’ apprehended P.W.18 from a place near the Chandra High School of Alfadanga of Faridpur on July 26 and handed him over to the Pakistani army camp at Faridpur Stadium. It has not been claimed by this P.W.18, the victim that accused Abul Kalam Azad @ Bachchu was involved with the act of apprehending and handing him (P.W.18) over to the Pakistani army camp at Faridpur Stadium or he (accused) accompanied the gang who committed alleged abduction. P.W.7 Md. Amir Hossain and P.W.15 Probodh Kumar Sarker also do not claim so and they have testified merely corroborating the fact of confining P.W.18, the victim at the camp.
196.Prosecution could not prove that the accused had effective control over the gang of Razakars who allegedly abducted the victim (P.W.18) or the accused had any substantial link with the act of abducting the victim or the accused substantially acted, facilitated or contributed to the commission of the offence of abduction.
197.In cross-examination, in reply to question put to him P.W.18 stated that in 1971 he was first year student of Faridpur Rajendra College and accused Abul Kalam Azad @ Bachchu was also student of that college and he was one year senior to him and he was associated with Islami Chatra Snagha (ICS) [the student wing of the Jamat E Islam (JEI]. This is the reason why P.W.18 could recognize the accused at the army camp at Faridpur. Thus, recognition of accused Abul Kalam Azad @ Bachchu by the P.W.18 at the camp remains unaffected.
198.P.W.7 Md. Amir Hossain has narrated the incident how he was apprehended and then kept confined at the ‘army camp’ of Faridpur stadium. In addition to this fact, P.W. 7 has stated, corroborating P.W.18, that during his confinement for long one month he found Abu Yusuf Pakhi (P.W.18) and others were brought there. It remains unshaken. Thus, this unimpeachable version goes to corroborate the fact of keeping P.W.18 confined at the ‘army camp’.
199.Next, it has been corroborated by the P.W.15 Probodh Kumar Sarker that he later on, learnt the event of confinement and torture caused to the detainees at the army camp set up at Faridpur stadium from the victims including P.W.18 Abu Yusuf Pakhi. Defence could not shatter this version, though hearsay in nature. The source of learning the fact of alleged confinement and torture was one of victims detained at the camp. Thus, the hearsay testimony of P.W.15 on this material particular carries probative value and lends corroboration to what has been deposed by the P.W. 18, the victim of confinement and torture.
200.But we do not find any indication from the evidence of P.W.15 that the accused Abul Kalam Azad @ Bachchu actively facilitated or contributed to the commission of offence of such confinement and torture. We have just found from corroborative version of P.W.15 that Abu Ysuf Pakhi was kept confined and tortured at the army camp.
201.P.W.18 stated that Advocate Afzal, Mainuddin, Alauddin Khan and Abul Kalam Azad, leaders of Peace Committee, another anti-liberation force, used to be present with the army during the brutal torture of the detainees. One day, Azad (accused) brought some women and handed them to the Major Akram, said P.W.18 Yusuf, adding that the women were tortured and abused beside their cell. From this version we have got a picture that the accused used to remain present at the time of causing torture to the detainees at the camp. This version reflects adequately that the accused had association with the crime camp.
Evaluation of Evidence and Finding
202.The learned state defence counsel reiterated his argument that the evidence of P.W.18 lacks of corroboration and as such it is not safe to act solely on it. He further argued that P.W.18 does not claim that the accused himself abducted, kept him confined and caused torture to him in the camp. P.W.15 is a hearsay witness and thus his evidence does not carry value. Mere testimony of P.W.7 that he, during his confinement period at the camp, found there P.W.18 Abu Ysuf Pakhi is not the proof of the fact of his alleged abduction and torture caused to him. Therefore, the accused cannot be held responsible for the event of crime brought in charge no.02. Prosecution has not been able to prove complicity of accused, in any manner, with the commission of offences narrated in charge no.02.
203.The fact of abducting and handing P.W.18 over to the Pakistani army camp at Faridpur Stadium; that on the following morning Major Akram Koreshi went there along with Abul Kalam Azad alias Bachchu and he was tortured in a torture cell and he was kept confined there for 43 days remain unshaken in his cross-examination. P.W.7 Md. Amir Hossain, during his own confinement at the same camp, found that Abu Yusuf Pakhi (P.W.18) and some other persons were brought there. Now the question comes forward how he acted to the accomplishment of the crimes alleged.
204.Since it could not be established that accused himself had involvement with the alleged act of abducting and handing him (P.W.18) over to the army camp the mere fact revealed from evidence of P.W.18 that the accused used to visit the camp and remained present while torture was caused to other detainees does not give rise to an irresistible inference that the accused himself was involved with the act of confining and causing torture to P.W.18, the victim.
205.Mere infrequent visit of the accused at the army camp does not establish it beyond reasonable doubt that the accused substantially contributed or facilitated the act of confinement and causing torture to P.W.18, particularly in absence of any specific and substantial criminal act or conduct to the accomplishment of the offence of alleged confinement and torture. Admittedly, the crime site was an ‘army camp’ set up at Faridpur stadium. Prosecution has not come up with a case that the accused had effective control and command over the alleged ‘army camp’, the crime site.
206.Evidence of P.W.15 Probodh Kumar Sarker , though hearsay, cannot be excluded as according to him later on, he learnt the event of confinement and torture caused to the detainees at the Faridpur stadium camp from the victims including P.W.18 Abu Yusuf Pakhi, the victim of charge no.2.
207.Evidence on the fact of confinement need not even be visible by any one else, considering the context and nature of the crime site. The offence of confinement as alleged has been established. The event and sufferings caused by torture may only be testified by the victim. Evidence of P.W.15 Probodh Kumar Sarker , though hearsay, cannot be excluded as according to him later on, he learnt the event of confinement and torture caused to the detainees at the Faridpur stadium camp from the victims including P.W.18 Abu Yusuf Pakhi, the victim of charge no.2.
208.We thus unerringly believe that P.W.18 was subjected to torture and degrading treatment at the camp. It is quite impractical to think that it was really possible to see such event by any one else. P.W.7 Md. Amir Hossain who was one of detainees of the camp had occasion only to see P.W.18 detained there. But P.W.7 has not stated that he saw the accused causing torture to P.W.18 or encouraging or facilitating in any manner to the accomplishment of the offence of torture upon P.W.18 by the principals.
209.P.W.18 the victim does not claim that at the time of causing torture to him too accused remained present with the Pakistani army and thereby encouraged or facilitated the commission of the offence of torture to him. Indubitably it has been proved that P.W.18 was a victim of torture during his confinement of the Pakistani army camp at Faridpur Stadium and perpetrators were Pakistani army of the crime camp. But for holding the accused criminally liable for the crimes alleged it has to be established that he participated or substantially contributed or facilitated to the commission of the offence of confinement and causing torture. The mere fact that the accused had close association with the Pakistani army of the ‘army camp’ and he used to make visit to it does not ipso facto prove his liability.
210.From the testimony of both P.W.18 and P.W.7 it could not be found that torture, causing mental or physical harm, was done to P.W.18 by the accused himself or the accused substantially contributed or facilitated to cause any kind of torture to him. On the strength of proved fact that the accused Abul Kalam Azad @ Bachchu almost all the time used to accompany the Major of the camp by his visit and used to avail the vehicle of Major, at best it can be held that the accused used to maintain close link and association with the army of the ‘crime camp’ and encouraged and provided moral support for committing offences directing to other persons brought to the camp.
211.However, the mere presence at and frequent visit to the ‘army camp’, the crime site, of the accused Abul Kalam Azad @ Bachchu, as testified by P.W.18, itself may however, be well perceived as a significant indicium of his close association with the army of the camp which is not sufficient to prove that the accused provided substantial encouragement or support and contribution to the accomplishment of the offence of confinement and torture done to P.W.18.
212.The victim P.W.18 stated that after remaining confined at the army camp at circuit house, prior to the event narrated in charge no.2, he was eventually released there from by another Pakistan army’s Baluch Major. Thus, it may be justifiably inferred that the accused had no role and control in keeping P.W.18 confined at an ‘army camp’ and to influence his release there from.
213.We are thus, on careful evaluation of evidence adduced in support of the charge no.2, persuaded that the offence of abducting, keeping confined at the army camp and causing torture to P.W.18 has been believably proved. But prosecution, as we have found, has been failed to establish it beyond reasonable doubt that the accused Abul Kalam Azad @ Bachchu by his act or conduct contributed or facilitated to the commission of the offence of abduction, confinement and torture as crimes against humanity as specified in section 3(2) (a) of the Act and therefore, he is not found to have incurred criminally liability under section 4(1) of the Act for the offences as listed in the charge no.2.
Adjudication of Charge No.03 [Sudhangsu Mohon Roy Killing]
214.Summary Charge: Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by 10/12 armed Razakers attacked the village Kolaron (Kvjvib) under police station Boalmari district Faridpur, and then the accused is alleged to have killed Sudhangsu Mohon Roy of village Kolaron on 14 May 1971 at about 15:00 hrs. during the War of Liberation and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘murder as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.
Witnesses
215.Accused Abul Kalam Azad @ Bachchu is alleged to have physically participated to the commission of the crime. Prosecution has examined two witnesses (P.W.1 and P.W.3) in support of this charge. Both the witnesses are live witnesses. Now let us see what they have stated on dock.
216.The event relates to killing of Sudhangshu Mohon Roy, a local influential member of Hindu community of village Kolaron under police station Boalmari district Faridpur. The event took place in broad day light. Pattern of the attack that resulted in such killing and atrocious acts signifies that it was in furtherance of part of attack against civilian population implemented through out the country in 1971. Now let us see what the P.W.1 and P.W.3 have testified.
Discussion of Evidence
217.P.W.1 Freedom fighter Nepal Chandra Pathak testified before the Tribunal that accused Azad killed Sudhangshu Mohan Roy of Kolaran of Faridpur on May 14, 1971. He claims to have witnessed the incident which relates to charge no. 02. P.W.1 Nepal Chandra Pathak, has testified that he saw accused Bachchu Razakar shooting Sudhangshu Babu.
218.PW1 stated that on 14 May 1971 at 10:00 am he had gone to the residence of Jaminder Sudhangsa Mohon Roy to meet his elder brother Haran Chandra Pathak who used to work there as ‘Nitya Pujari’ (daily worshiper)’. He found Sudhangsa Mohon Roy, his wife Nani Bala Roy, his son Moni Moy Roy and his wife Minoti Rani Roy available there. At about 03:00 pm when he was talking with his brother, Abul Kalam Azad @ Bachchu Razaker being accompanied by 10-12 armed persons entered the house and accused Bachchu dragged Sudhangsu Mohon Roy out of his house despite request to leave him, P.W.1 added.
219.In cross-examination P.W.1 stated that he knew accused Bachchu as he was a resident of his neighboring village and used to come to ‘haat’ where he had occasion to see him(accused) and he also knew him personally and also had talk with him. Thus P.W.1 was familiar with accused since prior to the incident and as such he could recognize him when the armed gang led by accused launched the attack on the house of Sudhanshu Mohon Roy. Thus, it is established that at the relevant time the gang of 10-12 armed men led by accused Abul Kalam Azad @ Bachchu dragged Sudhanshu Mohon Roy out of his house as it remains unshaken even in cross-examination.
220.P.W.1 further stated that he and others started following them (the gang of perpetrators) but accused Bachchu threatened not to follow them and with this they remained stood on the road. Monimoy Roy @ Keshto, son of Sudhangsu Mohon Roy was also taken out with his father.
221.Thereafter, P.W.1 saw Bachchu Razaker snatching the precious stone- rings from Sudhangsu Mohon Roy’s fingers and signaled them to go back home. With this when Sudhangsu Mohon Roy and Moni Moy Roy were approaching the house, accused Bachchu shoot Sudhangsu Mohon Roy from behind and with this he fell down. On seeing it Monimoy Roy started crying and then one of accomplices of Bachchu shoot him too causing injuries on his legs and with this he fell down. Thereafter, Bachchu and his accomplice disappeared towards eastern side road. P.W.1 next stated that they brought the dead body of Sudhangsu Mohon Roy and his funeral was done beside the pond adjacent to their residence and treatment was given to Moni Moy Roy @ Keshto, injured son of Sudhangsu Mohon Roy by a village doctor.
222.The description of the incident as depicted from evidence of P.W.1 could not be dislodged by the defence. Rather, it has been confirmed in cross-examination as P.W.1 in reply to question put to him stated that he himself saw accused Bachchu shooting Sudhangsu Mohon Roy to death and his (accused) father-in-law Chan Kazi also accompanied the gang to the crime site.
223.P.W.1 finally stated that afterwards, accused Bachchu along with Pakistani army also attacked Hasamdia and Moindia Bazar, looted valuables, burned houses and shops and killed a number of civilians there. This version remains undisputed in cross-examination. Rather it is found that P.W.1 saw the incident of burning Hasamdia and Moindia bazar from his own house, as stated in cross-examination.
224.Defence suggested that the alleged incident was perpetrated by the Pakistani army and not by the accused and his accomplices. P.W.1 denied the suggestion. However, the incident of killing as narrated in charge no.3 appears to have been proved beyond reasonable doubt.
225.The fact that P.W.1 went to the residence of victim Sudhangsu Mohon Roy to meet his brother who used to work there as a ‘pujari’(priest) on the date and time alleged remains totally unchallenged and thus we do not find any reason to disbelieve P.W.1 and what he has stated before the Tribunal. Rather, P.W.1 seems to be a natural and competent live witness. It has thus been proved that the armed accused accompanied by his 10-12 armed accomplices physically perpetrated the crime of killing and destructive atrocities.
226.P.W.3 Md. Mojaher Sikder is another live witness who has been examined to substantiate the commission of crimes and complicity of accused Abul Kalam Azad @ Bachchu thereof.
227.P.W.3 Md. Mojaher Sikder stated that he and accused Abul Kalam Azad @ Bachchu had studied together in ‘Bahirdia Kowmi Madrasa’ in their boyhood and thus he knew him well. At the relevant time P.W.3 was a resident of the crime village. Additionally, P.W.3, in his cross- examination, in reply to question put to him stated that he and the accused Abul Kalam Azad @ Bachchu studied together for one year at ‘Bahirdia Kowmi Madrasa’. Thus, we are persuaded to infer that naturally it was quite possible for P.W.3 to recognize the accused at the crime site committing crime alleged.
228.P.W.3 stated that on 14 may 1971 at about 02:30- 03:00 noon he found some 10/12 armed men were approaching towards east through the road adjacent to his house. Of them he could recognize only one and it was Abul Kalam Azad alias Bachchu who was his classmate in ‘Bahirdia Qaumi Madrasa’. P.W.3 quoted accused Azad as saying, “I have come from Faridpur after receiving training. Now I will govern the country.” P.W.3 Mojaher then started following them when they were going towards Sudhangshu's house and he saw them bringing Sudhangshu and his son Monimoy Roy out and took them 200 yards east of their home, added P.W.3.
229.P.W.3 further stated that he was standing at a bit distance along with Binoy Roy, another son of Sudhangshu Mohon Roy and Nepal Pathak (P.W.1). Nani Bala Roy, wife of Shudhangshu Mohon Roy and Minoti Rani Roy wife of Kesto were watching the incident. At a stage, Shudhangshu Mohon Roy and his son Keshto started returning back home and then accused Bachchu gunned Sudhanshu Mohon Roy down to death on seeing which Keshto started crying and instantly one of accomplices of accused Bachchu shoot him too causing injuries on his legs and with this he fell down. Afterwards, accused Bachchu and his gang left the crime site.
230.The above evidence of P.W.3, a live witness, seems to have corroborated what has been deposed by P.W.1, another live witness on the fact of commission of crime and physical complicity of the accused with it. Defence failed to controvert what has been narrated by P.W.3. Rather, in cross-examination it has been confirmed that they were on road outside of house of Sudhangshu Mohon Roy when the perpetrators dragged him out of his house.
Evaluation of Evidence and Finding
231.The learned Prosecutor while summing up its case has submitted that two live witnesses have proved this charge beyond reasonable doubt. From there evidence it would appear to be proved that the an armed group of Razakars led by the accused Abul Kalam Azad @ Bachchu attacking the house of Sudhangshu Mohon Roy dragged him out of his house then accused himself gunned down him to death and thereby he physically participated to the actual crimes which was a part of attack directed against civilian population constituting the offence of murder as crime against humanity as mentioned in section 3(2) (a) of the Act.
232.The learned state defence counsel reiterated his argument made by him in relation to charge nos. 1 and 2. He argued that P.W.1 and P.W.3 are not credible witnesses and had no opportunity to see the event of alleged killing; that the prosecution has been failed to prove that accused belonged to Razakar force and was associated with the Pakistani army.
233.We have found from the corroborative and unimpeachable evidence of P.W.1 and P.W.3 that at the time of commission of the crime alleged the accused having fire arms with him led the armed gang of 10-12 accomplices. It may be validly inferred too that the accused on having training received rifle for the purpose of accomplishment of attack in furtherance of policy of Pakistani army and the pro-Pakistani political organization collaborating them in 1971. Both the P.W.1 and P.W.3 are the live witnesses and we do not see any reasonable ground to discard their testimony made before us.
234.Defence could not impeach credibility of P.W.1 and P.W.3. They are natural and live witnesses. Their version as to the commission of crime and physical complicity of the accused with it is quite corroborative to each other. They had natural reason to identify and recognize the accused who led the armed gang to the accomplishment of crime. Their corroborative and credible evidence sufficiently demonstrates that accused Abul Kalam Azad @ Bachchu physically participated in killing of Sudhangshu Mohan Roy. Therefore, the argument extended by the learned state defence counsel does not fit to the claim of innocence of the accused. The unimpeachable evidence and relevant circumstances do not seem to have been tainted in any manner to cast reasonable doubt as to the guilt of the accused.
235.Thus the manner date and time of the horrific event of killing and looting and physical participation of accused Abul Kalam Azad @ Bachchu accompanied by 10-12 armed accomplices to the commission thereof have been proved beyond reasonable doubt by the unimpeachable evidence of P.W.1 and P.W.3. We have got from evidence of P.W.1 victim Sudhangshu Mohon Roy was a local Zaminder i.e a member of local Hindu community having distinguished status in the community and thus it is lawfully presumed that this is the reason as to why he was targeted by the perpetrators. P.W.3 quoted accused Azad as saying, “I have come from Faridpur after receiving training. Now I will govern the country.” It is thus once again proved that accused was a close associate of Pakistani army and he acted as a member of Razakars in furtherance of the policy of annihilation of Hindu group and pro-liberation civilian population.
236.The killing of Sudhangshu Mohan Roy and the criminal acts committed in conjunction of the event by the accused and his accomplices were not isolated for which the accused Abul Kalam Azad @ Bachchu is found criminally responsible under section 4(1) of the Act of 1973. The criminal acts on part of the accused and his accomplices was certainly a part of attack against civilian population which qualifies the offence alleged as murder as crime against humanity as specified in section 3(2) (a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the Act.
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