Part 3 of the Abul Kalam Azad judgement dealing with one offense of genocide
XVIII. Adjudication of Charges
112.Charge no.7 relates to the crime of ‘genocide’ as specified in section 3(2)(c)(i) of the Act while the remaining 07 charges relate to the criminal acts constituting the offences of ‘crimes against humanity’ as specified in section 3(2) (a) of the Act. For the sake of convenience of discussion we consider it expedient to adjudicate the charge no.7 first as the nature of crimes related to it differs from that as described in the latter ones.
(i) Adjudication of Charge No 07
113.Summary Charge: On May 17 1971 in the early morning, accused Abul Kalam Azad @ Bachchu (absconded) a member of Razakar Force and subsequently the local commander of Al-Badar Bahini or as a member of group of individuals, being accompanied by his 30/35 armed accomplices is alleged to have caused indiscriminate destruction and killing of (1) Sharat Chandra Poddar, (2) Suresh Poddar, (3) Shyama Pada Saha, (4) Jatindra Mohan Saha, (5) Nil Ratan Samadder , (6) Subol Koyal and (7) Mallik Chakravarti, the members of Hindu community, by gun shot. It is also alleged that in conjunction of the incident, the accused and his accomplices gunned down (8) Haripada Saha residents of crime village Hasamdia and (9) Probir Kumar Saha @ Puitta to death by abducting them to the river bank of ‘Maindia bazar’ and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘genocide’ for ‘killing the members of Hindu community’, with intent to destroy the Hindu religious group, either whole or in part as specified in section 3(2) (c)(i) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.
Witnesses
114.Prosecution adduced and examined in all 04 witnesses as P.W.16, P.W.17, P.W.19 and P.W.20 in support of the charge no.7 which relates to the offence of genocide as specified in section 3(2) (c)(i) of the Act. Of them P.W.16 and P.W.19 are the live witnesses. The alleged event of massacre relates to two crime sites. One is Hasamdia village under police station Boalmari district Faridpur and another one is Moindia Bazar under the same police station. The massacre alleged continued till noon from early part of morning. P.W.16 claims to have witnessed the second part of the event that took place at Moindia Bazar. P.W.19 the son of victim Shyamapada Saha a resident of the crime village Hasamdia had opportunity to witness the destructive incident remaining in hiding inside a bamboo bush adjacent to his house, as he has claimed. P.W.17 and P.W.20 are hearsay witnesses. Now let us see what the P.W.s have stated.
Discussion of Evidence
115.P.W.16 Abdul Mannan (56), Union Parishad member from Moindia Sreenagar village under police station Boalmari district Faridpur has claimed to have witnessed the killing of Haripada and Puitta and the acts of looting and carrying out arson at Moindia Bazar under Boalmari police station. P.W.16 has testified that on 02nd Jaistha in 1971 at about 06:00 in the morning he had heard sounds of shooting from Hasamdia ‘uttar para’ (the first crime site) also known as ‘Hindu Para’ and then he approached to Moindia Bazar where there were a mosque and a bush on the west side of the Bazar and nearer to ‘Kumar’ river. After going there, he saw Bachchu Razakar (accused) being accompanied by Pakistani army bringing two apprehended persons who were Haripada and Puitta towards the Bazar (market). At that time it was about 08:00 hrs. Thereafter, he (P.W.16) found more Razakars and Pakistani army arrived at the market by two big boats and started looting the shops of the market and it continued till 11:00 hrs. Such looting took place under the leadership of Bachchu Razakr (accused) and in presence of Pakistani army and other Razakars. Afterwards, they had burned the shops at market, P.W.16 added. After the criminal acts of looting and burning shops at Bazar and before they left the crime site with the looted goods, he saw that Bachchu Razakar (accused) himself gunned down Haripada and Puitta to death beside the mosque on the edge of the river.
116.In his cross-examination the above version as to commission of destructive criminal acts of looting, burning and killing remained totally unshaken. Defence simply suggested that accused did not accompany the perpetrators and he was not a member of Razakar force and not the accused but the Pakistani army had killed Haripada and Puitta.
117.How P.W.16 knew accused Abul Kalam Azad @ Bachchu and had he opportunity of seeing the accused committing criminal acts to the accomplishment of the offence of looting, burning and killing? In this regard, P.W.16 in reply to question elicited in his cross-examination stated that the house of Abul Kalam Azad @ Bachchu was about one kilometer far from his (P.W.16) house. He (accused) had studied at Madrasa and he (accused) in 1971 used to attend meetings of Jamat E Islami at Moindia Bazar. Earlier he (P.W.16) knew him (accused) as Bachchu Mia and through out 1971 he (accused) became known as ‘Bachchu Rzakar’ as he had participated in many killings. Even prior to 1971 accused used to attend meetings in support of electoral symbol ‘scale’. He (accused) also had studied in Faridpur Rajendra College. Association with political meetings held locally and his role in local politics was the reason to make the accused known to public of the locality. Therefore, the P.W.16 could naturally recognize the accused when he did criminal acts to the commission of killing of Haripada and Puitta at Moindia Bazar(second crime site). We do not find reason to disbelieve what he has stated on dock.
118.P.W.16 further stated in his cross-examination that they saw 20-25 armed Razakars led by Abul Kalam Azad @ Bachchu moving around the locality of Hasamdia, Moindia and Ujirpur. Why the accused used to move in such a manner having arms with him? This pertinent relevant fact inescapably is a link between his criminal acts and the accomplishment of crimes directed against civilian population, in 1971. This version has rather confirmed again that the accused was an armed member of a group of Razakars.
119.As regard first part of the massacre that took place at Hasamdia village in the early morning, P.W.16 stated what he learnt. He stated that at 15:00 hrs on the same day he had learnt that the gang led by Bachchu Razakar had killed Shyamapada Saha (father of P.W.19), Sharot Poddar (father of P.W.17) and his son Joggeswar Saha, Subol Koyal, Mallik Thakur and 2-3 others at the village Hasamdia. Later on he moved to Hasamdia village(first crime site) wherein he saw the dead bodies of victims and had learnt from Sushil (P.W.17) , Mansur Fakir, Jalil Molla and many others that Bachchu Razakar and his accomplices perpetrated the event of massacre and killings. Of the persons from whom he had learnt the incident only Sushil (P.W.17) is still alive, P.W.16 added.
120.Thus, P.W.16 is a hearsay witness in respect of the first part of the massacre that took place at Hasamdia village. But in his cross- examination, defence has not denied that P.W.16 had learnt the incident of Hasamdia village from the persons he stated in his examination-in- chief. Defence simply suggested that accused Abul Kalam Azad@ Bachchu did not accompanied the gang to the crime site and had not killed 7/8 civilians belonging to Hindu community. Therefore, taking the total evidence of P.W.16 into account we are of view that his hearsay testimony so far it relates to the first part of the massacre that took place at village Hasamdia carries sufficient probative value.
121.P.W.17 Sushil Kumar Podder (84), the son of victim Sharot Chandra Poddar and a resident of Hasamdia, the first crime village has testified that at about 06:00 hrs on May 17, 1971 corresponding to second day of Bangla month Jaistha on hearing that military had entered into their village he asked his parents to remain in hiding wherever they liked. Their village was predominantly Hindu populated. With this they along with family inmates remained in hiding inside a ‘pan baroj’ adjacent to their house and he (P.W.17) and his brother Suresh remained stood inside a mango orchard. At a stage, his brother Suresh leaving him there had attempted to see as to what was happening, by moving forward. P.W.17 saw that the military gunned down his brother Suresh to death when he had moved 40-50 yards from the mango orchard. P.W.17 further stated that after the firing had stopped he heard sound of burning houses and saw smoke. After the Pakistani army and Razakars had left the crime site, he on the way back to his house had heard that the Pakistani army and their 10-15 armed civilian accomplices had killed his father Sharot Chandra Poddar, his brother Suresh Chandra Poddar, Sachin Saha. He also heard that the perpetrators had also killed Jatindra Mohan Saha, Shyamapada Saha, Surja Kumar Das, Nil Ratan Samadder, Nepal Chandra Paul, P.W.17 added. Later on, he (P.W.17) found burnt and bullet injured dead body of Jatindra Mohan Saha having his hands and legs tied up condition at the courtyard of his (P.W.17) house. Moving a bit forward P.W.17 also found bullet injured Surja Kumar Das who appealed for giving him water. He (Surja Kumar Das) had told him that Bachchu Razakar accompanied the Pakistani army to the accomplishment of the events. Thereafter, they leaving the country deported to India and returned back after the independence.
122.P.W.17 has narrated the heart wrenching event of massacre to the accomplishment of which accused Abul Kalam Azad @ Bachhu accompanied the Pakistani army and Razakars. In cross-examination, in reply to question put to him P.W.17 stated that he himself could not see Bachchu but he had heard from Surja Kumar Das that accused Abul Kalam Azad @ Bachhu accompanied the Pakistani troops at the crime site. Surja Kumar Das also deported to India and he died 4-5 years after his coming back to home after independence.
123.P.W.19 Satya Ranjan Saha, son of Late Shyamapada Saha, one of victims has testified the events of killings narrated in charge no. 7. He is a live witness. At the relevant time P.W. 19 was 20 years of age. In narrating the incident, in detail, P.W.19 stated that on 02nd Jaistha, in 1971 at about 06:30 hrs, on hearing firing and uproar from the house of Sharot Poddar, inmates of their family being frightened started fleeing and he himself had put him out of sight inside a clump of bamboos wherefrom he saw that Bachchu (accused) and Pakistani army shoot his father to death. The gang then looted their house. Bachchu attacked their house, being accompanied by 25/30 Razakars and Pakistani army. On their way back, they had burnt houses of their neighbours Sharot Poddar, Rasik Saha, Nil Ratan and other residents and they killed 8/10 civilian residents of their village including Sharot Poddar, Suresh Poddar, Sachin, Jatindra Saha, Goutam and his father Nil Ratan and he (P.W.19) found their dead bodies there later on, after the gang left the crime scene, P.W.19 added.
124.In respect of the second part of the event that took place at Moindia Bazar P.W.19 also stated that he had heard from many people of Moindia Bazaar that the gang of Bachchu (accused) and his accomplices Razakars and Pakistani army, on their way back from their village (Hasamdia) , looted 50/60 shops of the Bazaar and brunt the same including their own shop. They, in conjunction of this event, killed Haripada Saha and Puitta and the local people buried their dead bodies by the bank of river. After this dreadful event they and almost all the residents of their village deported to India, P.W. 19 added.
125.P.W.19 stated in his cross-examination that he knew the accused Bachchu from his boyhood as he (accused) used to reside at their neighboring village and he (accused) had studied in a school at Khardia. Thus the reason how P.W.19 could recognize the accused at the first crime site (Hasamdia) committing the criminal acts by accompanying Razakars and Pakistani army has become rather established. Thus, the claim of witnessing the accused committing the offence of killing his father is quite credible.
126.P.W.20 Asit Baran Saha is a hearsay witness about the horrific incident as listed in charge no.7. He was a resident of village Sree Nagar Madhya Para under police station Boalmari district Faridpur. At the relevant time he was about 20 years old. According to him he had learnt the massacre and mass killing committed at Hasamdia Hindu village committed by 12/13 Razakers led by Bachchu (accused) and Pakistani army.
127.P.W.20 also stated that afterwards, the gang of Bachchu (accused) came to Moindia Bazar and being frightened they remained in hiding and later on he saw the committed acts of destruction, looting and burning 50/60 shops of Moindia Bazar. He found dead body of Haripada Saha and Puitta on the bank of river. He had learnt that Bachchu Razakar (accused) and his accomplices killed them. 25 days after the incident they being frightened deported to India.
Evaluation of Evidence and Finding
128.The learned prosecutor drawing attention to the incriminating evidence of four P.Ws examined in support of this charge has submitted that commission of the atrocious event has been proved and it could not be impeached by the defence. Prosecution has been able to establish the fact that accused Abul Klama Azad @ Bachchu accompanied the armed gang of Razakars and Pakistani army to the accomplishment of massacre and the accused substantially participated to its commission with intent to destroy Hindu group of crime village. The accused himself physically participated to the act of killing father of P.W.17 and father of P.W.19. The fact that instantly after the horrific events of massacre , destruction , looting and killings, civilians belonging to Hindu community of the crime locality deported to India indicates the destructive pattern of the crimes and intent of the perpetrators to commit thereof. Thus the event as described in charge no.7 can lawfully be characterized as an offence of ‘genocide’ as specified in section 3(2)(c)(i) of the Act of 1973.
129.In respect of this charge, the learned state defence counsel has argued that considering the horrific nature of the event it is not believable that it was possible for any one of seeing the event even remaining in hiding and thus evidence of P.W.16 and P.W.19 as to recognition of accused accompanying the perpetrators to the crime sites inspires no credibility.
130.From the evidence of 04 P.Ws examined in support of charge no.7 together with argument advanced by the learned state defence counsel one thing is quite patent that perpetration of the event of massacre and killings of members of Hindu community of the crime village is not disputed. Defence has merely attempted to exclude the fact that accused accompanied the gang of perpetrators and was present at the crime sites.
131.P.W.16 claimed to have seen the second part of the attack causing killing of Haripada and Puitta at Moindia Bazar. But he is hearsay witness in respect of the first part of the attack that resulted into killing of 7/8 more Hindu people at Hasamdia Hindu Para. According to him after the perpetrators left the crime scene (Moindia Bazar) he had gone
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there and found dead bodies of the persons killed there and had heard from Sushil (P.W.17), Mansur Fakir, Jalil Molla and many other people as to who killed them. Of them Shushil Kumar Poddar has testified as P.W.17 who is a son of one of victims of the killing.
132.It thus reveals from testimony of P.W 16 that in conjunction of the attack targeting Hasamdia Uttar para known as ‘Hindu para’ in the morning the gang led by accused Bachchu also killed 7/8 members of the local Hindu community and the pattern the armed gang led by the accused Bachchu launched the attack reflects that they carried out the attack with knowledge of the consequence and intention of the perpetrators was to destroy the local Hindu community, even in part, in accomplishment of policy and organised plan of the Pakistani army and their local collaborators and accomplices.
133.P.W.17 does not claim to have witnessed the accused killing his father and brother. But he has stated that he learnt instantly after the incident from Surja Kumar Das, a bullet-injured victim that accused Abul Kalam Azda @ Bachchu accompanied the army during the killing. Thus it is inferred that the accused substantially contributed and encouraged the gang of perpetrators in accomplishment of the crimes.
134.Defence did not put any question to P.W.17 with a view to dislodge the fact of his learning the first part of the attack at village Hasamdia from him by the P.W.16. Additionally, we do not find any reasonable ground to discard the hearsay evidence as to learning the incident of killing of 7/8 persons at Hasamdia Hindu para. Rather, P.W.16 and P.W.17 seem to be natural witnesses, particularly in absence of any reason whatsoever of being interested to tell a lie.
135.P.W.17 narrated the incident but could not say it categorically as to specific act or conduct of accused with the commission of crimes. But his hearsay evidence lends corroboration at least to the fact that the accused accompanied the Pakistani army and was present at the first crime site in perpetrating atrocities and his presence there i.e presence and accompanying the principals at the crime site adequately indicates that he rendered practical assistance, encouragement and support to the Pakistani army and Razakars to the accomplishment of crimes. Therefore, the hearsay evidence of P.W.17 so far it relates to the fact of his learning as to involvement of accused with killing of his father and other killings and destructive acts carries reasonable probative value.
136.Learning a fact related to the commission of alleged massacre from an injured victim (Surja Kumar Das) instantly after the perpetrators had left the crime site inspires credence and carries sufficient probative value. It will appear that the defence failed to dislodge the commission of the alleged event of massacre and killing as stated by the P.W.17. Thus, the mere suggestion put to P.W.17 that accused Abul Kalam Azad @ Bachchu did not accompany the Pakistani troops and he was not present at the crime site does not make the event and presence of the accused at the crime site(Hasamdia village) tarnished in any manner.
137.P.W.17 also stated that afterwards, the gang of Pakistani army and Bachchu (accused) and his accomplices on their way towards Moindia Bazar(second crime site) looted and burned the house of Dr. Nani Gopal and then they also looted and had burned the shops of Moindia Bazar and killed Haripada and Puitta there. It remains unshaken in cross-examination. Additionally, considering the context and havoc of the massacre it was not natural and possible for mass people to witness the event. It is lawfully presumed that most of the civilians around the crime site preferred to remain in hiding and some could not. Despite the atrocious pattern of the event some persons might have opportunity to remain in hiding and thus had opportunity to see the event and criminal acts including the presence of the accused as a co-perpetrator accompanying the principals at crime sites. It is quite natural. Therefore, hearsay evidence of P.W.17 as to learning the fact of presence of accused Abul Kalam Azad @ Bachchu deserves legitimate consideration.
138.It is to be noted that now it is settled that mere presence at the scene of the crime may, under certain circumstances, be sufficient to qualify as complicity (as, for instance, when such presence may be shown to provide encouragement and moral support to the principal offender). So acts of encouragement or assistance such as providing help in identification members of the targeted group by accompanying the principals to killing sites could have been lawfully inferred from the fact of presence of the accused under the circumstances depicted from evidence.
139.Defence could not however controvert the commission of the event of crimes, by cross-examining P.W.19. Rather, his evidence has rendered corroboration to what has been testified by the P.W.16, P.W.17 on the acts of killing, destruction, looting and involvement of accused therewith. P.W.19, a live witness, is the son of one of victims of the horrific atrocities who had opportunity to witness the incident of killing his father Shayamapada Saha by remaining in hiding in a bamboo bush. It remains undisputed. Additionally, P.W.19 knew the accused from earlier as he (accused) was a resident of their neighboring village Kahrdia. P.W. 19 is a natural and live witness and there is no reason to exclude what he has testified.
140.Perpetration of the horrific event including murder of numerous civilians targeting the Hindu group including the father of P.W.19 on the date time and manner as narrated by a live witness P.W.19 has been proved. At the same time we have found from evidence of P.W.19 that the accused accompanied the gang of perpetrators and how he had directly participated to the commission of destructive crimes. All these facts remain totally undisputed in cross-examination of P.W.19.
141.How P.W.20 could recognize the accused accompanying the armed gang and Pakistani army at Moindia Bazar , the second crime site ? In reply to question put to him P.W.19 has stated in his cross-examination that he knew Abul Kalam Azad @ Bachchu from boyhood who used to reside about one and half to two kilometers far from their village and had studied at Sreenagar high school. Bachchu (accused) became known as Razakar after the Pakistani army rolled into Faridpur and he had learnt too that prior to the event of massacre he has described accused Abul Kalam Azad @ Bachchu gunned down Shudhangshu Mohon Roy to death at their Kolaron village home and since then he(P.W.20) became aware that Bachchu was a member of Razakars. The relevant fact as have been depicted from cross-examination of P.W.20 lends adequate and valid assurance as to conduct and acts of the accused together with the fact of his incriminating association with Pakistani army as a member of armed Razakars.
142.It is found from his evidence of P.W.20 that he had learnt the first part of the event of massacre that took place at village Hasamdia. But he saw accused Abul Kalam Azad @ Bachchu, his accomplice Razakars and Pakistani army coming to Moindia Bazar, the second crime site. In cross-examination, P.W.20 stated that at the time of event he had been at Moindia Bazar and in the evening of the day of event he visited the first crime village Hasamdia and witnessed the horrific extent and nature of destructive atrocities done there.
143.It is now settled, by the verdicts of adhoc tribunals (ICTY, ICTR) constituted by the United Nations to try internationally recognised crimes committed in violation of international humanitarian law and customary international law that even a single piece of evidence that is relevant will be relied upon to determine culpability of the accused. Additionally, we reiterate that the Tribunal(ICT-2) is not bound by the strict rules of evidence and that in any case, probative value of testimony of even a single witness is to be weighed and accordingly, acceptance of and reliance upon uncorroborated evidence, per se, does not constitute an error in law, in finding an accused guilty under the Act of 1973. However, in the case in hand, we have found that the prosecution has been able to prove culpability of the accused by the evidence of P.W.16, P.W.17, P.W.19 and P.W.20 of whom P.W.16 and P.W.19 are the live witnesses.
144.Generally, considering the horrendous nature of crimes the event could not be expected to have been witnessed by numerous persons. Incidentally some one might have opportunity of seeing it remaining in hiding at a place adjacent to the crime site. Apart from them, other person cannot be perceived to have seen the event of massacre. So, the perpetration of crime and acts and conduct of perpetrators could have been learnt from an injured victim or person who had incidental opportunity of seeing the event. It is quite natural and thus the testimony of P.W.17 and P.W.20 though hearsay inspires credence, particularly when such hearsay testimony gets fair corroboration from live witness’s (P.W.16 and P.W.19) account.
145.The way and the pattern of perpetrating the crimes alleged adequately demonstrate that the accused, apart from his own physical participation, substantially encouraged and provided moral support and aided the principals to the accomplishment of crimes. Pattern of the criminal acts, as narrated by P.W.19, speaks adequately that accused Abul Kalam Azad @ Bachchu accompanied the Pakistani army in committing atrocities by launching attack targeting the Hindu group of civilians of their village and later on, as has been testified, all the Hindu residents of their village deported to India. That is to say, the massive atrocities and mass scale killing and destruction compelled the members of Hindu community of the crime village to deport. Displacement from own residing place does not conform to the internationally recognised principle of human rights.
146.The portrayal that has been depicted from the evidence of P.W.19 inspires us in arriving at an unerring finding that on the date, time and in the manner the horrific atrocity of attack was launched targeting the unarmed Hindu community of Hasamdia village which was also known as ‘Hindu Para’ and then Moindia Bazar, the second crime site with intent to destroy the community, even in part and in conjunction of the attack in all about 10 members of the Hindu community were killed and the perpetrators led by accused Azad committed substantial scale of looting, destruction of properties and burning the houses and shops belonging to the Hindu civilians of the crime locality.
147.It has also been established from evidence of P.W.16. P.W.17, P.W.19 and P.W 20 that few days after the horrendous crimes almost all the members of the Hindu community residing at the crime village including the relatives of victims and sufferers became compelled to deport to India leaving their properties, houses etc. and they returned back only after achieving the victory on 16 December. That is to say, the cumulative effect of the atrocities including killing, destruction and looting of properties, mental harms compelling the Hindu community of the crime village inevitably imprints an unmistakable notion that the aim and intent of the perpetrators was to destroy the ‘Hindu group or community’, in part. This notion is qualified as ‘genocidal intent’ as required to constitute the offence of ‘genocide’. It remains totally uncontroversial.
148.Targeting the group of Hindu community residing at the crime villages itself is rather emblematic of the overall Hindu community of the country. Thus, targeting part of the community qualifies as substantial, for the purpose of inferring the ‘genocidal intent’. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial.
149.The accused and his co-perpetrators, as evidence shows, targeted a significant section of Hindu community of the crime locality and in conjunction of the event they committed destruction of properties, looting, burning houses and shops together with killing of members of Hindu religion. The pattern of perpetration of crimes alleged in charge no.7 adequately indicates the ‘intent’ of the perpetrators. The intent to destroy a group may, in principle, be established if the destruction is related to a significant section of the group. In the case of Jelisic, (Trial Chamber: ICTY), December 14, 1999, para. 83 it has been observed that “It is accepted that genocide may be perpetrated in a limited geographic zone.” The geographical zone in which an attempt to eliminate the group is made may be “limited to the size of a region or . . . a municipality.”
150.It is now settled jurisprudence that the victims of genocide must be targeted by reason of their membership in a ‘group or community’. The intent to destroy a ‘group’ as such, in whole or in part, presupposes that the victims were chosen by reason of their membership in the group whose destruction was sought. In the case in hand, it is patent that the local Hindu community was chosen by the accused Abul Kalam Azad @ Bachchu and his co-perpetrators for no other reason, but with intent to destroy it even in part. The physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to ‘annihilate the group’ as a distinct entity in the geographic area at issue.
151.The basic principle of the concept of ‘genocide’ is: indiscriminate and systematic destruction of members of a group because they belong to that group. Thus, merely the number of individuals of Hindu group killed cannot be the only objective for an inference as to constitution of genocide. Destruction as transpired from the evidence of P.W.16, P.W.17, P.W.19 and P.W.20 was patently indiscriminate targeting the members of a ‘group’ i.e Hindu community because they belong to Hindu religion.
152.In the case in hand, from the evidence before us relating to charge no.7 it is proved that barbarity of combined acts aiming to cause organized destruction was against the members of collectivity i.e ‘Hindu religious group’ which exceeded the concept of human rights. The attacks were carried out against individuals of a collectivity i.e Hindu religious group. The intent of the author of the crime was not only to harm an individual, but also to cause massive damage to the collectivity to which the later belongs. Offenses of such gravest nature bring harm not only to human rights, but also and most especially they undermine the fundamental basis of the social order of a particular group of civilian population.
153.Evidence, without a doubt, shows that the accused and his accomplices intended to destroy a substantial part of the local Hindu community. Considering the pattern of destructive atrocities together with the killing of about 10 members of Hindu community, number of persons killed becomes immaterial in arriving at a decision as to ‘genocidal intent’. It is now settled jurisprudence that the number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. The alleged attack was perpetrated at a segment of the crime village which was dominantly Hindu populated and thus targeting and killing about 10 Hindu individuals is to be evaluated for inferring ‘genocidal intent’.
154.According to Section 3(2)(c)(i) of the Act of 1973 ‘genocide’ is the deliberate and systematic destruction of a national, ethnic, racial, religious or political group. The extermination of individuals because of their membership to distinct national, ethnic, racial, religious or political group has been perpetrated throughout the period of War of Liberation in 1971 within the territory of Bangladesh. It is the history of common knowledge and need not be proved by adducing evidence.
155.The relevant provisions of Section 3(2)(c) of the Act of 1973 are as follows: Genocide : meaning and including any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, as such :
(i) killing members of the group
(ii) causing serious bodily or mental harm to members of the group;
(iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(iv) imposing measures intended to prevent births within the group;
(v) forcibly transferring children of the group to another group.
156.The accused Abul Kalam Azad @ Bachchu has been charged with the offence of genocide as he allegedly acted and participated to the commission of ‘killing members of the Hindu religious group’ with ‘intent to destroy’ it, ‘in whole or in part’. The meaning of ‘genocide’ as contained in the Act of 1973 seems to be in conformity with the Article 6 of the Rome Statute.
157.However, in holding the accused criminally responsible for the offence of genocide with which he has been charged we are to arrive at a finding that he committed such a crime, as an individual or as a member of Razakar force, an armed militia group jointly with Pakistani army, regardless of whether that other person is criminally responsible or he induced, aided and substantially contributed to the commission of such a crime with the knowledge of the intention of the principals by acting with a common purpose with the aim of furthering the perpetration of crime of genocide.
158.Determination of the targeted group is to be made on a case-by-case basis. In light of the narration depicted form evidence relating to charge no.7, from subjective standpoint we consider that the victims of the killing were perceived by the accused and his co perpetrators of the crime as belonging to the group i.e ‘Hindu religion or community’ targeted for destruction. Hindu community is a group sharing common beliefs. It is clear that the victims were targeted because they belonged to this group.
159. In a report titled ‘Hindus are targets of Army Terror in an East Pakistan Town’ of Sydney H. Schanberg, the special correspondent published in The New York Times: 29 June 1971
“ An undetermined number of Faridpur’s 10.000 Hindus have been killed and others have fled across the border to predominantly Hindu India....................On April 21, when the army rolled into Faridpur, the old woman and her 84-year old husband ran to seek refuge in a Hindu village, Bodidangi, about three miles away. The next day the army hit Bodidangi and, reliable local reports say, as many as 300 Hindus were massacred. The campaign against the Hindus was – and in some cases still is systematic.
...............................Only about half of Faridpur’s 35,000 people have returned, although the flow has been growing. Recently the army eased up on its executions and burning of villages in an attempt to demonstrate that normality has returned. The change in tactics began in mid-June, just before the central Government announced that it was allowing foreign newsmen back into the region.” [Source:http://www.docstrangelove.com/uploads/1971/foreign/19710704_nyt_hindus_are_targets_of_army_terror_in _an_east_pakistani_town.pdf]
160. It will appear that all the events, excepting that one narrated in charge no.2, constituting offences for which the accused has been charged with took place in between the period of mid-May to 08 June of 1971. Further it is found from the report that the Pakistani army rolled into Faridpur town on 21 April 1971 which has been established too by the testimony of P.W.s. Next, the above report also reflects that annihilation of Hindu community was the intent of Pakistani army and its local pro- Pakistan collaborators who assisted them in accomplishment of atrocities. We have found from evidence of P.W.s that instantly after rolling into Faridpur town, the local Bengali accomplices aided the Pakistani army in launching systematic attack, particularly targeting Hindus. The report of the New York Times of June 29 1971 reflects it too.
161.It is now settled that genocide is a subset of crimes against humanity and it covers many of the same physical acts, but requires a very specific intent (genocidal intent) that is not required to constitute the offence of crimes against humanity. To constitute the offence of ‘genocide’ any of acts specified in section 3(2(C) (i) of the Act is to be committed with intent to destroy, either whole or in part. Intent is a mental factor which is hard, even impracticable, to determine and as such, it can only be inferred from a certain number of presumptions of fact. However, ‘intent’ may be fairly inferred from (a) the scale and pattern of atrocities, (b) the fact of systematically targeting the individuals belonging to a group (c) political dogma of the perpetrators of the crime and (d) extent and repetition of the destructive and discriminatory acts.
162. The testimony of P.W.16 and P.W.19 paints a picture of shattered lives and livelihoods, and of tremendous ongoing pain and trauma caused to the civilian residents belonging to Hindu community of the crime village. Considering the pattern of the organized attack launched by the accused Abul Kalam Azad @ Bachchu and his armed accomplices and Pakistani army we arrive at an unerring finding that the killings, together with the forced deportation of the remaining members of the targeted group i.e individuals belonging to Hindu religion, and the destruction of their homes by torching and looting, constituted a single operation which was executed with intent to destroy a group in whole or in part.
163.The phrase “in whole or in part” implies that in the event that the plan to destroy all members of the group fails, the successful destruction of part of the group also constitutes genocide. In that case all members of the group or part of it who suffered are counted as victims of genocide. For example, although Hitler failed to exterminate all Jews under his plan, he still committed genocide. We have found from evidence that after the destruction and massacre almost all the members belonging to Hindu community deported to India as all of them felt sufferer with the destructive atrocities. In addition, the plan to destroy in part also constitutes genocide.
164.Raphael Lemkin, the scholar who first proposed the concept of genocide in his book Axis Rule in Occupied Europe, spoke regularly of a plan as if this was sine qua non for the crime of genocide. In the case of Prosecutor v. Kayishema, the ICTR Trial Chamber wrote: “Although a specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry out genocide without a plan or organization.” [Prosecutor v. Kayishema , Case No. ICTR 95-1-T, Judgement, 94 (May 21, 1999)] .Furthermore, the Chamber said that existence of such a plan would be strong evidence of the specific intent requirement for the crime of genocide. Thus, we see that existence of a plan or policy is not a legal ingredient of the crime of genocide. However, in the context of proving specific intent, the existence of a plan or policy may play an important factor in most cases.
165.Therefore, the acts of killing, torturing, confining of Hindu civilians and destruction, looting and torching of their properties were part of attack designed on certain policy and plan of Pakistani government and its occupation army. All the four P.W.s who have testified in support of the charge of genocide as listed in charge no.7 have proved that accused Abul Kalam Azad @ Bachchu , at the time of commission of the crimes, was accompanied by his armed accomplices and Pakistani army. It is not claimed that accused alone himself committed the crimes. The pattern and extent of horrendousness of atrocities adequately demonstrates that the accused joined the gang of perpetrators with actus reus of aiding and substantially contributing to the accomplishment of crimes.
166.Accused Abul Kalam Azad @ Bachchu was a member of the militia organization comprised of armed civilians (Razakers). It is proved. It is to be noted that dictionary definitions consider an ‘organization’ to comprise any organized group of people. Further, the actus reus of aiding may occur before, during or after the principal crime. Aiding means providing assistance or help to another to the commission of a crime. Prosecution has been able to establish close affiliation of accused Abul Kalam Azad @ Bachchu with the Pakistani army since it rolled into Faridpur town on 21 April, 1971.
167.We have found from evidence of P.W.16, P.W 17, P.W 19 and P.W. 20 that at the time of commission of crimes narrated in charge no.7 Pakistani army and some armed civilian accomplices were also with the accused Abul Kalam Azad @ Bachchu. It is also found that the accused had rendered, apart from his physical participation as found from testimony of P.W.16 and P.W.19, assistance, encouragement and moral support which had substantial effect on the perpetration of the massive crimes as has been listed in charge no.7. It is proved that the accused accompanied the armed perpetrators and he was physically present at the crime scenes and thus he is deemed to have rendered ‘tacit approval’ to the accomplishment of the event of massacre. Besides, in conjunction of the commission of the event of massacre, accused Abul Kalam Azda @ Bachchu himself too actively and directly participated to the commission of the acts of killings.
168.Naturally the Pakistani army was not at all familiar with the communications and locations of villages or the information as to where a particular group of civilians used to reside. Therefore, by dint of his position that the accused was able to establish, accompanied the Pakistani army and his armed accomplices and thereby substantially urged to the author of crimes to perpetrate the attack targeting the Hindu community of the crime village. The accused even by being present during the attack and participating through shooting is thus guilty of committing genocide.
169.By taking the conducts and acts of the accused as a whole into account we are constrained to imprint our valid inference that the accused, in addition to his physical and direct participation to killing, substantially aided and assisted the Pakistani army not only by accompanying them at the time of commission of crimes but also before or after such commission, as one of their close associates and local Razakars. On this score as well, accused Abul Kalam Azad @ Bachchu is held criminally responsible for the crime of genocide. The accused himself need not have participated in all aspects of the alleged criminal event. The acts of providing assistance, encouragement and moral support need not be tangible, but the same have to be inferred from the totality of the event and conduct of the accused who accompanied the gang of perpetrators.
170.Section 4(1) of the Act of 1973 states: “When any crime as specified in section 3 is committed by several persons, each of such person is liable for that crime in the same manner as if it were done by him alone.” It has been established that accused Abul Kalam Azad @ Bachchu was a potential associate of Pakistani army and also was a significant armed member of volunteer Razakar force which was organized after the Pakistani army struck Faridpur on 21 April 1971. This being the status that the accused was holding at relevant time, his presence at the crime site as an active accomplice of the principals inevitably prompts us to infer that, in addition to his direct participation of killing at the time of commission of the event of massacre, he substantially provided practical assistance, encouragement and moral support to the principals i.e co-perpetrators in perpetration of the offence of genocide that resulted in mass killing of individuals belonging to ‘Hindu Community’ which is a ‘distinct religious group’ and mass destruction and thereby he incurs liability under section 4(1) of the Act for the offence of genocide as specified in section 3(2)(c) (i) of the Act of 1973.
XVIII. Adjudication of Charges
112.Charge no.7 relates to the crime of ‘genocide’ as specified in section 3(2)(c)(i) of the Act while the remaining 07 charges relate to the criminal acts constituting the offences of ‘crimes against humanity’ as specified in section 3(2) (a) of the Act. For the sake of convenience of discussion we consider it expedient to adjudicate the charge no.7 first as the nature of crimes related to it differs from that as described in the latter ones.
(i) Adjudication of Charge No 07
113.Summary Charge: On May 17 1971 in the early morning, accused Abul Kalam Azad @ Bachchu (absconded) a member of Razakar Force and subsequently the local commander of Al-Badar Bahini or as a member of group of individuals, being accompanied by his 30/35 armed accomplices is alleged to have caused indiscriminate destruction and killing of (1) Sharat Chandra Poddar, (2) Suresh Poddar, (3) Shyama Pada Saha, (4) Jatindra Mohan Saha, (5) Nil Ratan Samadder , (6) Subol Koyal and (7) Mallik Chakravarti, the members of Hindu community, by gun shot. It is also alleged that in conjunction of the incident, the accused and his accomplices gunned down (8) Haripada Saha residents of crime village Hasamdia and (9) Probir Kumar Saha @ Puitta to death by abducting them to the river bank of ‘Maindia bazar’ and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘genocide’ for ‘killing the members of Hindu community’, with intent to destroy the Hindu religious group, either whole or in part as specified in section 3(2) (c)(i) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.
Witnesses
114.Prosecution adduced and examined in all 04 witnesses as P.W.16, P.W.17, P.W.19 and P.W.20 in support of the charge no.7 which relates to the offence of genocide as specified in section 3(2) (c)(i) of the Act. Of them P.W.16 and P.W.19 are the live witnesses. The alleged event of massacre relates to two crime sites. One is Hasamdia village under police station Boalmari district Faridpur and another one is Moindia Bazar under the same police station. The massacre alleged continued till noon from early part of morning. P.W.16 claims to have witnessed the second part of the event that took place at Moindia Bazar. P.W.19 the son of victim Shyamapada Saha a resident of the crime village Hasamdia had opportunity to witness the destructive incident remaining in hiding inside a bamboo bush adjacent to his house, as he has claimed. P.W.17 and P.W.20 are hearsay witnesses. Now let us see what the P.W.s have stated.
Discussion of Evidence
115.P.W.16 Abdul Mannan (56), Union Parishad member from Moindia Sreenagar village under police station Boalmari district Faridpur has claimed to have witnessed the killing of Haripada and Puitta and the acts of looting and carrying out arson at Moindia Bazar under Boalmari police station. P.W.16 has testified that on 02nd Jaistha in 1971 at about 06:00 in the morning he had heard sounds of shooting from Hasamdia ‘uttar para’ (the first crime site) also known as ‘Hindu Para’ and then he approached to Moindia Bazar where there were a mosque and a bush on the west side of the Bazar and nearer to ‘Kumar’ river. After going there, he saw Bachchu Razakar (accused) being accompanied by Pakistani army bringing two apprehended persons who were Haripada and Puitta towards the Bazar (market). At that time it was about 08:00 hrs. Thereafter, he (P.W.16) found more Razakars and Pakistani army arrived at the market by two big boats and started looting the shops of the market and it continued till 11:00 hrs. Such looting took place under the leadership of Bachchu Razakr (accused) and in presence of Pakistani army and other Razakars. Afterwards, they had burned the shops at market, P.W.16 added. After the criminal acts of looting and burning shops at Bazar and before they left the crime site with the looted goods, he saw that Bachchu Razakar (accused) himself gunned down Haripada and Puitta to death beside the mosque on the edge of the river.
116.In his cross-examination the above version as to commission of destructive criminal acts of looting, burning and killing remained totally unshaken. Defence simply suggested that accused did not accompany the perpetrators and he was not a member of Razakar force and not the accused but the Pakistani army had killed Haripada and Puitta.
117.How P.W.16 knew accused Abul Kalam Azad @ Bachchu and had he opportunity of seeing the accused committing criminal acts to the accomplishment of the offence of looting, burning and killing? In this regard, P.W.16 in reply to question elicited in his cross-examination stated that the house of Abul Kalam Azad @ Bachchu was about one kilometer far from his (P.W.16) house. He (accused) had studied at Madrasa and he (accused) in 1971 used to attend meetings of Jamat E Islami at Moindia Bazar. Earlier he (P.W.16) knew him (accused) as Bachchu Mia and through out 1971 he (accused) became known as ‘Bachchu Rzakar’ as he had participated in many killings. Even prior to 1971 accused used to attend meetings in support of electoral symbol ‘scale’. He (accused) also had studied in Faridpur Rajendra College. Association with political meetings held locally and his role in local politics was the reason to make the accused known to public of the locality. Therefore, the P.W.16 could naturally recognize the accused when he did criminal acts to the commission of killing of Haripada and Puitta at Moindia Bazar(second crime site). We do not find reason to disbelieve what he has stated on dock.
118.P.W.16 further stated in his cross-examination that they saw 20-25 armed Razakars led by Abul Kalam Azad @ Bachchu moving around the locality of Hasamdia, Moindia and Ujirpur. Why the accused used to move in such a manner having arms with him? This pertinent relevant fact inescapably is a link between his criminal acts and the accomplishment of crimes directed against civilian population, in 1971. This version has rather confirmed again that the accused was an armed member of a group of Razakars.
119.As regard first part of the massacre that took place at Hasamdia village in the early morning, P.W.16 stated what he learnt. He stated that at 15:00 hrs on the same day he had learnt that the gang led by Bachchu Razakar had killed Shyamapada Saha (father of P.W.19), Sharot Poddar (father of P.W.17) and his son Joggeswar Saha, Subol Koyal, Mallik Thakur and 2-3 others at the village Hasamdia. Later on he moved to Hasamdia village(first crime site) wherein he saw the dead bodies of victims and had learnt from Sushil (P.W.17) , Mansur Fakir, Jalil Molla and many others that Bachchu Razakar and his accomplices perpetrated the event of massacre and killings. Of the persons from whom he had learnt the incident only Sushil (P.W.17) is still alive, P.W.16 added.
120.Thus, P.W.16 is a hearsay witness in respect of the first part of the massacre that took place at Hasamdia village. But in his cross- examination, defence has not denied that P.W.16 had learnt the incident of Hasamdia village from the persons he stated in his examination-in- chief. Defence simply suggested that accused Abul Kalam Azad@ Bachchu did not accompanied the gang to the crime site and had not killed 7/8 civilians belonging to Hindu community. Therefore, taking the total evidence of P.W.16 into account we are of view that his hearsay testimony so far it relates to the first part of the massacre that took place at village Hasamdia carries sufficient probative value.
121.P.W.17 Sushil Kumar Podder (84), the son of victim Sharot Chandra Poddar and a resident of Hasamdia, the first crime village has testified that at about 06:00 hrs on May 17, 1971 corresponding to second day of Bangla month Jaistha on hearing that military had entered into their village he asked his parents to remain in hiding wherever they liked. Their village was predominantly Hindu populated. With this they along with family inmates remained in hiding inside a ‘pan baroj’ adjacent to their house and he (P.W.17) and his brother Suresh remained stood inside a mango orchard. At a stage, his brother Suresh leaving him there had attempted to see as to what was happening, by moving forward. P.W.17 saw that the military gunned down his brother Suresh to death when he had moved 40-50 yards from the mango orchard. P.W.17 further stated that after the firing had stopped he heard sound of burning houses and saw smoke. After the Pakistani army and Razakars had left the crime site, he on the way back to his house had heard that the Pakistani army and their 10-15 armed civilian accomplices had killed his father Sharot Chandra Poddar, his brother Suresh Chandra Poddar, Sachin Saha. He also heard that the perpetrators had also killed Jatindra Mohan Saha, Shyamapada Saha, Surja Kumar Das, Nil Ratan Samadder, Nepal Chandra Paul, P.W.17 added. Later on, he (P.W.17) found burnt and bullet injured dead body of Jatindra Mohan Saha having his hands and legs tied up condition at the courtyard of his (P.W.17) house. Moving a bit forward P.W.17 also found bullet injured Surja Kumar Das who appealed for giving him water. He (Surja Kumar Das) had told him that Bachchu Razakar accompanied the Pakistani army to the accomplishment of the events. Thereafter, they leaving the country deported to India and returned back after the independence.
122.P.W.17 has narrated the heart wrenching event of massacre to the accomplishment of which accused Abul Kalam Azad @ Bachhu accompanied the Pakistani army and Razakars. In cross-examination, in reply to question put to him P.W.17 stated that he himself could not see Bachchu but he had heard from Surja Kumar Das that accused Abul Kalam Azad @ Bachhu accompanied the Pakistani troops at the crime site. Surja Kumar Das also deported to India and he died 4-5 years after his coming back to home after independence.
123.P.W.19 Satya Ranjan Saha, son of Late Shyamapada Saha, one of victims has testified the events of killings narrated in charge no. 7. He is a live witness. At the relevant time P.W. 19 was 20 years of age. In narrating the incident, in detail, P.W.19 stated that on 02nd Jaistha, in 1971 at about 06:30 hrs, on hearing firing and uproar from the house of Sharot Poddar, inmates of their family being frightened started fleeing and he himself had put him out of sight inside a clump of bamboos wherefrom he saw that Bachchu (accused) and Pakistani army shoot his father to death. The gang then looted their house. Bachchu attacked their house, being accompanied by 25/30 Razakars and Pakistani army. On their way back, they had burnt houses of their neighbours Sharot Poddar, Rasik Saha, Nil Ratan and other residents and they killed 8/10 civilian residents of their village including Sharot Poddar, Suresh Poddar, Sachin, Jatindra Saha, Goutam and his father Nil Ratan and he (P.W.19) found their dead bodies there later on, after the gang left the crime scene, P.W.19 added.
124.In respect of the second part of the event that took place at Moindia Bazar P.W.19 also stated that he had heard from many people of Moindia Bazaar that the gang of Bachchu (accused) and his accomplices Razakars and Pakistani army, on their way back from their village (Hasamdia) , looted 50/60 shops of the Bazaar and brunt the same including their own shop. They, in conjunction of this event, killed Haripada Saha and Puitta and the local people buried their dead bodies by the bank of river. After this dreadful event they and almost all the residents of their village deported to India, P.W. 19 added.
125.P.W.19 stated in his cross-examination that he knew the accused Bachchu from his boyhood as he (accused) used to reside at their neighboring village and he (accused) had studied in a school at Khardia. Thus the reason how P.W.19 could recognize the accused at the first crime site (Hasamdia) committing the criminal acts by accompanying Razakars and Pakistani army has become rather established. Thus, the claim of witnessing the accused committing the offence of killing his father is quite credible.
126.P.W.20 Asit Baran Saha is a hearsay witness about the horrific incident as listed in charge no.7. He was a resident of village Sree Nagar Madhya Para under police station Boalmari district Faridpur. At the relevant time he was about 20 years old. According to him he had learnt the massacre and mass killing committed at Hasamdia Hindu village committed by 12/13 Razakers led by Bachchu (accused) and Pakistani army.
127.P.W.20 also stated that afterwards, the gang of Bachchu (accused) came to Moindia Bazar and being frightened they remained in hiding and later on he saw the committed acts of destruction, looting and burning 50/60 shops of Moindia Bazar. He found dead body of Haripada Saha and Puitta on the bank of river. He had learnt that Bachchu Razakar (accused) and his accomplices killed them. 25 days after the incident they being frightened deported to India.
Evaluation of Evidence and Finding
128.The learned prosecutor drawing attention to the incriminating evidence of four P.Ws examined in support of this charge has submitted that commission of the atrocious event has been proved and it could not be impeached by the defence. Prosecution has been able to establish the fact that accused Abul Klama Azad @ Bachchu accompanied the armed gang of Razakars and Pakistani army to the accomplishment of massacre and the accused substantially participated to its commission with intent to destroy Hindu group of crime village. The accused himself physically participated to the act of killing father of P.W.17 and father of P.W.19. The fact that instantly after the horrific events of massacre , destruction , looting and killings, civilians belonging to Hindu community of the crime locality deported to India indicates the destructive pattern of the crimes and intent of the perpetrators to commit thereof. Thus the event as described in charge no.7 can lawfully be characterized as an offence of ‘genocide’ as specified in section 3(2)(c)(i) of the Act of 1973.
129.In respect of this charge, the learned state defence counsel has argued that considering the horrific nature of the event it is not believable that it was possible for any one of seeing the event even remaining in hiding and thus evidence of P.W.16 and P.W.19 as to recognition of accused accompanying the perpetrators to the crime sites inspires no credibility.
130.From the evidence of 04 P.Ws examined in support of charge no.7 together with argument advanced by the learned state defence counsel one thing is quite patent that perpetration of the event of massacre and killings of members of Hindu community of the crime village is not disputed. Defence has merely attempted to exclude the fact that accused accompanied the gang of perpetrators and was present at the crime sites.
131.P.W.16 claimed to have seen the second part of the attack causing killing of Haripada and Puitta at Moindia Bazar. But he is hearsay witness in respect of the first part of the attack that resulted into killing of 7/8 more Hindu people at Hasamdia Hindu Para. According to him after the perpetrators left the crime scene (Moindia Bazar) he had gone
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there and found dead bodies of the persons killed there and had heard from Sushil (P.W.17), Mansur Fakir, Jalil Molla and many other people as to who killed them. Of them Shushil Kumar Poddar has testified as P.W.17 who is a son of one of victims of the killing.
132.It thus reveals from testimony of P.W 16 that in conjunction of the attack targeting Hasamdia Uttar para known as ‘Hindu para’ in the morning the gang led by accused Bachchu also killed 7/8 members of the local Hindu community and the pattern the armed gang led by the accused Bachchu launched the attack reflects that they carried out the attack with knowledge of the consequence and intention of the perpetrators was to destroy the local Hindu community, even in part, in accomplishment of policy and organised plan of the Pakistani army and their local collaborators and accomplices.
133.P.W.17 does not claim to have witnessed the accused killing his father and brother. But he has stated that he learnt instantly after the incident from Surja Kumar Das, a bullet-injured victim that accused Abul Kalam Azda @ Bachchu accompanied the army during the killing. Thus it is inferred that the accused substantially contributed and encouraged the gang of perpetrators in accomplishment of the crimes.
134.Defence did not put any question to P.W.17 with a view to dislodge the fact of his learning the first part of the attack at village Hasamdia from him by the P.W.16. Additionally, we do not find any reasonable ground to discard the hearsay evidence as to learning the incident of killing of 7/8 persons at Hasamdia Hindu para. Rather, P.W.16 and P.W.17 seem to be natural witnesses, particularly in absence of any reason whatsoever of being interested to tell a lie.
135.P.W.17 narrated the incident but could not say it categorically as to specific act or conduct of accused with the commission of crimes. But his hearsay evidence lends corroboration at least to the fact that the accused accompanied the Pakistani army and was present at the first crime site in perpetrating atrocities and his presence there i.e presence and accompanying the principals at the crime site adequately indicates that he rendered practical assistance, encouragement and support to the Pakistani army and Razakars to the accomplishment of crimes. Therefore, the hearsay evidence of P.W.17 so far it relates to the fact of his learning as to involvement of accused with killing of his father and other killings and destructive acts carries reasonable probative value.
136.Learning a fact related to the commission of alleged massacre from an injured victim (Surja Kumar Das) instantly after the perpetrators had left the crime site inspires credence and carries sufficient probative value. It will appear that the defence failed to dislodge the commission of the alleged event of massacre and killing as stated by the P.W.17. Thus, the mere suggestion put to P.W.17 that accused Abul Kalam Azad @ Bachchu did not accompany the Pakistani troops and he was not present at the crime site does not make the event and presence of the accused at the crime site(Hasamdia village) tarnished in any manner.
137.P.W.17 also stated that afterwards, the gang of Pakistani army and Bachchu (accused) and his accomplices on their way towards Moindia Bazar(second crime site) looted and burned the house of Dr. Nani Gopal and then they also looted and had burned the shops of Moindia Bazar and killed Haripada and Puitta there. It remains unshaken in cross-examination. Additionally, considering the context and havoc of the massacre it was not natural and possible for mass people to witness the event. It is lawfully presumed that most of the civilians around the crime site preferred to remain in hiding and some could not. Despite the atrocious pattern of the event some persons might have opportunity to remain in hiding and thus had opportunity to see the event and criminal acts including the presence of the accused as a co-perpetrator accompanying the principals at crime sites. It is quite natural. Therefore, hearsay evidence of P.W.17 as to learning the fact of presence of accused Abul Kalam Azad @ Bachchu deserves legitimate consideration.
138.It is to be noted that now it is settled that mere presence at the scene of the crime may, under certain circumstances, be sufficient to qualify as complicity (as, for instance, when such presence may be shown to provide encouragement and moral support to the principal offender). So acts of encouragement or assistance such as providing help in identification members of the targeted group by accompanying the principals to killing sites could have been lawfully inferred from the fact of presence of the accused under the circumstances depicted from evidence.
139.Defence could not however controvert the commission of the event of crimes, by cross-examining P.W.19. Rather, his evidence has rendered corroboration to what has been testified by the P.W.16, P.W.17 on the acts of killing, destruction, looting and involvement of accused therewith. P.W.19, a live witness, is the son of one of victims of the horrific atrocities who had opportunity to witness the incident of killing his father Shayamapada Saha by remaining in hiding in a bamboo bush. It remains undisputed. Additionally, P.W.19 knew the accused from earlier as he (accused) was a resident of their neighboring village Kahrdia. P.W. 19 is a natural and live witness and there is no reason to exclude what he has testified.
140.Perpetration of the horrific event including murder of numerous civilians targeting the Hindu group including the father of P.W.19 on the date time and manner as narrated by a live witness P.W.19 has been proved. At the same time we have found from evidence of P.W.19 that the accused accompanied the gang of perpetrators and how he had directly participated to the commission of destructive crimes. All these facts remain totally undisputed in cross-examination of P.W.19.
141.How P.W.20 could recognize the accused accompanying the armed gang and Pakistani army at Moindia Bazar , the second crime site ? In reply to question put to him P.W.19 has stated in his cross-examination that he knew Abul Kalam Azad @ Bachchu from boyhood who used to reside about one and half to two kilometers far from their village and had studied at Sreenagar high school. Bachchu (accused) became known as Razakar after the Pakistani army rolled into Faridpur and he had learnt too that prior to the event of massacre he has described accused Abul Kalam Azad @ Bachchu gunned down Shudhangshu Mohon Roy to death at their Kolaron village home and since then he(P.W.20) became aware that Bachchu was a member of Razakars. The relevant fact as have been depicted from cross-examination of P.W.20 lends adequate and valid assurance as to conduct and acts of the accused together with the fact of his incriminating association with Pakistani army as a member of armed Razakars.
142.It is found from his evidence of P.W.20 that he had learnt the first part of the event of massacre that took place at village Hasamdia. But he saw accused Abul Kalam Azad @ Bachchu, his accomplice Razakars and Pakistani army coming to Moindia Bazar, the second crime site. In cross-examination, P.W.20 stated that at the time of event he had been at Moindia Bazar and in the evening of the day of event he visited the first crime village Hasamdia and witnessed the horrific extent and nature of destructive atrocities done there.
143.It is now settled, by the verdicts of adhoc tribunals (ICTY, ICTR) constituted by the United Nations to try internationally recognised crimes committed in violation of international humanitarian law and customary international law that even a single piece of evidence that is relevant will be relied upon to determine culpability of the accused. Additionally, we reiterate that the Tribunal(ICT-2) is not bound by the strict rules of evidence and that in any case, probative value of testimony of even a single witness is to be weighed and accordingly, acceptance of and reliance upon uncorroborated evidence, per se, does not constitute an error in law, in finding an accused guilty under the Act of 1973. However, in the case in hand, we have found that the prosecution has been able to prove culpability of the accused by the evidence of P.W.16, P.W.17, P.W.19 and P.W.20 of whom P.W.16 and P.W.19 are the live witnesses.
144.Generally, considering the horrendous nature of crimes the event could not be expected to have been witnessed by numerous persons. Incidentally some one might have opportunity of seeing it remaining in hiding at a place adjacent to the crime site. Apart from them, other person cannot be perceived to have seen the event of massacre. So, the perpetration of crime and acts and conduct of perpetrators could have been learnt from an injured victim or person who had incidental opportunity of seeing the event. It is quite natural and thus the testimony of P.W.17 and P.W.20 though hearsay inspires credence, particularly when such hearsay testimony gets fair corroboration from live witness’s (P.W.16 and P.W.19) account.
145.The way and the pattern of perpetrating the crimes alleged adequately demonstrate that the accused, apart from his own physical participation, substantially encouraged and provided moral support and aided the principals to the accomplishment of crimes. Pattern of the criminal acts, as narrated by P.W.19, speaks adequately that accused Abul Kalam Azad @ Bachchu accompanied the Pakistani army in committing atrocities by launching attack targeting the Hindu group of civilians of their village and later on, as has been testified, all the Hindu residents of their village deported to India. That is to say, the massive atrocities and mass scale killing and destruction compelled the members of Hindu community of the crime village to deport. Displacement from own residing place does not conform to the internationally recognised principle of human rights.
146.The portrayal that has been depicted from the evidence of P.W.19 inspires us in arriving at an unerring finding that on the date, time and in the manner the horrific atrocity of attack was launched targeting the unarmed Hindu community of Hasamdia village which was also known as ‘Hindu Para’ and then Moindia Bazar, the second crime site with intent to destroy the community, even in part and in conjunction of the attack in all about 10 members of the Hindu community were killed and the perpetrators led by accused Azad committed substantial scale of looting, destruction of properties and burning the houses and shops belonging to the Hindu civilians of the crime locality.
147.It has also been established from evidence of P.W.16. P.W.17, P.W.19 and P.W 20 that few days after the horrendous crimes almost all the members of the Hindu community residing at the crime village including the relatives of victims and sufferers became compelled to deport to India leaving their properties, houses etc. and they returned back only after achieving the victory on 16 December. That is to say, the cumulative effect of the atrocities including killing, destruction and looting of properties, mental harms compelling the Hindu community of the crime village inevitably imprints an unmistakable notion that the aim and intent of the perpetrators was to destroy the ‘Hindu group or community’, in part. This notion is qualified as ‘genocidal intent’ as required to constitute the offence of ‘genocide’. It remains totally uncontroversial.
148.Targeting the group of Hindu community residing at the crime villages itself is rather emblematic of the overall Hindu community of the country. Thus, targeting part of the community qualifies as substantial, for the purpose of inferring the ‘genocidal intent’. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial.
149.The accused and his co-perpetrators, as evidence shows, targeted a significant section of Hindu community of the crime locality and in conjunction of the event they committed destruction of properties, looting, burning houses and shops together with killing of members of Hindu religion. The pattern of perpetration of crimes alleged in charge no.7 adequately indicates the ‘intent’ of the perpetrators. The intent to destroy a group may, in principle, be established if the destruction is related to a significant section of the group. In the case of Jelisic, (Trial Chamber: ICTY), December 14, 1999, para. 83 it has been observed that “It is accepted that genocide may be perpetrated in a limited geographic zone.” The geographical zone in which an attempt to eliminate the group is made may be “limited to the size of a region or . . . a municipality.”
150.It is now settled jurisprudence that the victims of genocide must be targeted by reason of their membership in a ‘group or community’. The intent to destroy a ‘group’ as such, in whole or in part, presupposes that the victims were chosen by reason of their membership in the group whose destruction was sought. In the case in hand, it is patent that the local Hindu community was chosen by the accused Abul Kalam Azad @ Bachchu and his co-perpetrators for no other reason, but with intent to destroy it even in part. The physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to ‘annihilate the group’ as a distinct entity in the geographic area at issue.
151.The basic principle of the concept of ‘genocide’ is: indiscriminate and systematic destruction of members of a group because they belong to that group. Thus, merely the number of individuals of Hindu group killed cannot be the only objective for an inference as to constitution of genocide. Destruction as transpired from the evidence of P.W.16, P.W.17, P.W.19 and P.W.20 was patently indiscriminate targeting the members of a ‘group’ i.e Hindu community because they belong to Hindu religion.
152.In the case in hand, from the evidence before us relating to charge no.7 it is proved that barbarity of combined acts aiming to cause organized destruction was against the members of collectivity i.e ‘Hindu religious group’ which exceeded the concept of human rights. The attacks were carried out against individuals of a collectivity i.e Hindu religious group. The intent of the author of the crime was not only to harm an individual, but also to cause massive damage to the collectivity to which the later belongs. Offenses of such gravest nature bring harm not only to human rights, but also and most especially they undermine the fundamental basis of the social order of a particular group of civilian population.
153.Evidence, without a doubt, shows that the accused and his accomplices intended to destroy a substantial part of the local Hindu community. Considering the pattern of destructive atrocities together with the killing of about 10 members of Hindu community, number of persons killed becomes immaterial in arriving at a decision as to ‘genocidal intent’. It is now settled jurisprudence that the number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. The alleged attack was perpetrated at a segment of the crime village which was dominantly Hindu populated and thus targeting and killing about 10 Hindu individuals is to be evaluated for inferring ‘genocidal intent’.
154.According to Section 3(2)(c)(i) of the Act of 1973 ‘genocide’ is the deliberate and systematic destruction of a national, ethnic, racial, religious or political group. The extermination of individuals because of their membership to distinct national, ethnic, racial, religious or political group has been perpetrated throughout the period of War of Liberation in 1971 within the territory of Bangladesh. It is the history of common knowledge and need not be proved by adducing evidence.
155.The relevant provisions of Section 3(2)(c) of the Act of 1973 are as follows: Genocide : meaning and including any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, as such :
(i) killing members of the group
(ii) causing serious bodily or mental harm to members of the group;
(iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(iv) imposing measures intended to prevent births within the group;
(v) forcibly transferring children of the group to another group.
156.The accused Abul Kalam Azad @ Bachchu has been charged with the offence of genocide as he allegedly acted and participated to the commission of ‘killing members of the Hindu religious group’ with ‘intent to destroy’ it, ‘in whole or in part’. The meaning of ‘genocide’ as contained in the Act of 1973 seems to be in conformity with the Article 6 of the Rome Statute.
157.However, in holding the accused criminally responsible for the offence of genocide with which he has been charged we are to arrive at a finding that he committed such a crime, as an individual or as a member of Razakar force, an armed militia group jointly with Pakistani army, regardless of whether that other person is criminally responsible or he induced, aided and substantially contributed to the commission of such a crime with the knowledge of the intention of the principals by acting with a common purpose with the aim of furthering the perpetration of crime of genocide.
158.Determination of the targeted group is to be made on a case-by-case basis. In light of the narration depicted form evidence relating to charge no.7, from subjective standpoint we consider that the victims of the killing were perceived by the accused and his co perpetrators of the crime as belonging to the group i.e ‘Hindu religion or community’ targeted for destruction. Hindu community is a group sharing common beliefs. It is clear that the victims were targeted because they belonged to this group.
159. In a report titled ‘Hindus are targets of Army Terror in an East Pakistan Town’ of Sydney H. Schanberg, the special correspondent published in The New York Times: 29 June 1971
“ An undetermined number of Faridpur’s 10.000 Hindus have been killed and others have fled across the border to predominantly Hindu India....................On April 21, when the army rolled into Faridpur, the old woman and her 84-year old husband ran to seek refuge in a Hindu village, Bodidangi, about three miles away. The next day the army hit Bodidangi and, reliable local reports say, as many as 300 Hindus were massacred. The campaign against the Hindus was – and in some cases still is systematic.
...............................Only about half of Faridpur’s 35,000 people have returned, although the flow has been growing. Recently the army eased up on its executions and burning of villages in an attempt to demonstrate that normality has returned. The change in tactics began in mid-June, just before the central Government announced that it was allowing foreign newsmen back into the region.” [Source:http://www.docstrangelove.com/uploads/1971/foreign/19710704_nyt_hindus_are_targets_of_army_terror_in _an_east_pakistani_town.pdf]
160. It will appear that all the events, excepting that one narrated in charge no.2, constituting offences for which the accused has been charged with took place in between the period of mid-May to 08 June of 1971. Further it is found from the report that the Pakistani army rolled into Faridpur town on 21 April 1971 which has been established too by the testimony of P.W.s. Next, the above report also reflects that annihilation of Hindu community was the intent of Pakistani army and its local pro- Pakistan collaborators who assisted them in accomplishment of atrocities. We have found from evidence of P.W.s that instantly after rolling into Faridpur town, the local Bengali accomplices aided the Pakistani army in launching systematic attack, particularly targeting Hindus. The report of the New York Times of June 29 1971 reflects it too.
161.It is now settled that genocide is a subset of crimes against humanity and it covers many of the same physical acts, but requires a very specific intent (genocidal intent) that is not required to constitute the offence of crimes against humanity. To constitute the offence of ‘genocide’ any of acts specified in section 3(2(C) (i) of the Act is to be committed with intent to destroy, either whole or in part. Intent is a mental factor which is hard, even impracticable, to determine and as such, it can only be inferred from a certain number of presumptions of fact. However, ‘intent’ may be fairly inferred from (a) the scale and pattern of atrocities, (b) the fact of systematically targeting the individuals belonging to a group (c) political dogma of the perpetrators of the crime and (d) extent and repetition of the destructive and discriminatory acts.
162. The testimony of P.W.16 and P.W.19 paints a picture of shattered lives and livelihoods, and of tremendous ongoing pain and trauma caused to the civilian residents belonging to Hindu community of the crime village. Considering the pattern of the organized attack launched by the accused Abul Kalam Azad @ Bachchu and his armed accomplices and Pakistani army we arrive at an unerring finding that the killings, together with the forced deportation of the remaining members of the targeted group i.e individuals belonging to Hindu religion, and the destruction of their homes by torching and looting, constituted a single operation which was executed with intent to destroy a group in whole or in part.
163.The phrase “in whole or in part” implies that in the event that the plan to destroy all members of the group fails, the successful destruction of part of the group also constitutes genocide. In that case all members of the group or part of it who suffered are counted as victims of genocide. For example, although Hitler failed to exterminate all Jews under his plan, he still committed genocide. We have found from evidence that after the destruction and massacre almost all the members belonging to Hindu community deported to India as all of them felt sufferer with the destructive atrocities. In addition, the plan to destroy in part also constitutes genocide.
164.Raphael Lemkin, the scholar who first proposed the concept of genocide in his book Axis Rule in Occupied Europe, spoke regularly of a plan as if this was sine qua non for the crime of genocide. In the case of Prosecutor v. Kayishema, the ICTR Trial Chamber wrote: “Although a specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry out genocide without a plan or organization.” [Prosecutor v. Kayishema , Case No. ICTR 95-1-T, Judgement, 94 (May 21, 1999)] .Furthermore, the Chamber said that existence of such a plan would be strong evidence of the specific intent requirement for the crime of genocide. Thus, we see that existence of a plan or policy is not a legal ingredient of the crime of genocide. However, in the context of proving specific intent, the existence of a plan or policy may play an important factor in most cases.
165.Therefore, the acts of killing, torturing, confining of Hindu civilians and destruction, looting and torching of their properties were part of attack designed on certain policy and plan of Pakistani government and its occupation army. All the four P.W.s who have testified in support of the charge of genocide as listed in charge no.7 have proved that accused Abul Kalam Azad @ Bachchu , at the time of commission of the crimes, was accompanied by his armed accomplices and Pakistani army. It is not claimed that accused alone himself committed the crimes. The pattern and extent of horrendousness of atrocities adequately demonstrates that the accused joined the gang of perpetrators with actus reus of aiding and substantially contributing to the accomplishment of crimes.
166.Accused Abul Kalam Azad @ Bachchu was a member of the militia organization comprised of armed civilians (Razakers). It is proved. It is to be noted that dictionary definitions consider an ‘organization’ to comprise any organized group of people. Further, the actus reus of aiding may occur before, during or after the principal crime. Aiding means providing assistance or help to another to the commission of a crime. Prosecution has been able to establish close affiliation of accused Abul Kalam Azad @ Bachchu with the Pakistani army since it rolled into Faridpur town on 21 April, 1971.
167.We have found from evidence of P.W.16, P.W 17, P.W 19 and P.W. 20 that at the time of commission of crimes narrated in charge no.7 Pakistani army and some armed civilian accomplices were also with the accused Abul Kalam Azad @ Bachchu. It is also found that the accused had rendered, apart from his physical participation as found from testimony of P.W.16 and P.W.19, assistance, encouragement and moral support which had substantial effect on the perpetration of the massive crimes as has been listed in charge no.7. It is proved that the accused accompanied the armed perpetrators and he was physically present at the crime scenes and thus he is deemed to have rendered ‘tacit approval’ to the accomplishment of the event of massacre. Besides, in conjunction of the commission of the event of massacre, accused Abul Kalam Azda @ Bachchu himself too actively and directly participated to the commission of the acts of killings.
168.Naturally the Pakistani army was not at all familiar with the communications and locations of villages or the information as to where a particular group of civilians used to reside. Therefore, by dint of his position that the accused was able to establish, accompanied the Pakistani army and his armed accomplices and thereby substantially urged to the author of crimes to perpetrate the attack targeting the Hindu community of the crime village. The accused even by being present during the attack and participating through shooting is thus guilty of committing genocide.
169.By taking the conducts and acts of the accused as a whole into account we are constrained to imprint our valid inference that the accused, in addition to his physical and direct participation to killing, substantially aided and assisted the Pakistani army not only by accompanying them at the time of commission of crimes but also before or after such commission, as one of their close associates and local Razakars. On this score as well, accused Abul Kalam Azad @ Bachchu is held criminally responsible for the crime of genocide. The accused himself need not have participated in all aspects of the alleged criminal event. The acts of providing assistance, encouragement and moral support need not be tangible, but the same have to be inferred from the totality of the event and conduct of the accused who accompanied the gang of perpetrators.
170.Section 4(1) of the Act of 1973 states: “When any crime as specified in section 3 is committed by several persons, each of such person is liable for that crime in the same manner as if it were done by him alone.” It has been established that accused Abul Kalam Azad @ Bachchu was a potential associate of Pakistani army and also was a significant armed member of volunteer Razakar force which was organized after the Pakistani army struck Faridpur on 21 April 1971. This being the status that the accused was holding at relevant time, his presence at the crime site as an active accomplice of the principals inevitably prompts us to infer that, in addition to his direct participation of killing at the time of commission of the event of massacre, he substantially provided practical assistance, encouragement and moral support to the principals i.e co-perpetrators in perpetration of the offence of genocide that resulted in mass killing of individuals belonging to ‘Hindu Community’ which is a ‘distinct religious group’ and mass destruction and thereby he incurs liability under section 4(1) of the Act for the offence of genocide as specified in section 3(2)(c) (i) of the Act of 1973.
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