Part 5 of the Abul Kalam Azad judgement, dealing with charges 4, 5, 6 and 8 relating to Crimes against Humanity
Adjudication of Charge 04 [Madhab Chandra killing]
237.Summary Charge: Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini or as a member of group of individuals being accompanied by 10/12 armed Razakers is alleged to have killed Madhab Chandra Biswas at village ‘Purura Nampara‘ under police station Nagarkanda district Faridpur by dragging him out of his house , on 16 May 1971 at about 15:00 , 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 the offence of ‘murder as crime against humanity’ by directing attack targeting the civilian Hindu 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
238.Prosecution, in support of this charge, has adduced and examined as many as three witnesses as P.W.6, P.W.8 and P.W.10. They are live witnesses who by deposing on dock have incriminated the accused with the commission of the offence of killing Madhab Chandra Biswas and Gyanendra. All the witnesses are from the crime village. Of them P.W.6 Bhakta Ranjan Biswas is the son of victim Madhab Chandra Biswas. The alleged offence of murder took place in broad day light and by dragging the victim out of his house. P.W.6 Bhakta Ranjan Biswas, 65 year old and son of victim Madhab Chandra Biswas has testified about his experience of killing his father, the event as narrated in charge no.04. In narrating the event he stated that he had seen the incidents [killings] and his neighbours Prafulla Kumar Mandol (P.W.8), Tusto Kumar Mondol (P.W.10), Sunil Kumar Mondal and many others witnessed it too.
Discussion of Evidence
239.P.W.6 Vokto Ranjan Biswas stated that the Pakistani army established camps in Faridpur and since then accused Abul Kalam Azad @ Bachchu and his 10-12 armed accomplices started looting and destructing houses of Awami League supporters and Hindu community.
240.The above unshaken version has proved that the accused after having established his link with the Pakistani army had started committing atrocities particularly targeting Hindu community in the areas of Faridpur district and it also indicates that by committing such atrocious activities he intended, with conscious knowledge of consequence of his acts and conducts, to collaborate and provide substantial support to the Pakistani army, in implementation of its plan and policy.
241. In respect of the event of murder narrated in charge no.4, P.W. 6 stated that on 16 May 1971 corresponding to 01 Jaistha at about 13:00 hrs Abul Kalam Azad (accused) being accompanied by Mohammad Kazi and others raided their house at village Purura under police station Saltha district Faridpur. His father was a supporter of Awami League. His father, on seeing the armed gang coming attempted to escape but the perpetrators caught him hold, had looted ornaments, money from their house and afterwards they brought his father dragging to 300 yards west to the house of Tushta Master’s pond and then Abul Kalam Azad @ Bachchu shoot his father to death with the rifle in his hand. The fact of looting ornaments and households as stated in examination-in-chief appears to have been confirmed as P.W.6 in reply to question elicited by the defence in cross-examination that Bachchu Razakar(accused) and his accomplices looted ornaments from their house.
242.The event of killing of Madhab Chandra Biswas as narrated by P.W.6 remains undisputed and defence could not however controvert it in any manner. We find no reason to infer that testimony of P.W.6 is tainted by any doubt. In addition to the event of killing his father P.W.6 further stated that afterwards accused Abul Kalam Azad @ Bachchu also shoot one Gayanendra Mondol to death at the southern part of their house with the rifle in his hand. He (P.W.6), his neighbours Prafulla Kumar Mondol (P.W.8), Tushta Kumar Mondol(P.W.10), Sunil Kumar Mondol, Monindra Nath Mondol and many others had witnessed the incident of killing. After the event of killings and attack they including 500-600 Hindu residents of their village deported to India, in fear of Bachchu Razakar, P.W.6 added.
243.P.W.8 Prafulla Kumar Mandol , a 63-year-old retired school headmaster, a resident of the crime village and a live witness has stated that around 1:00pm on May 16, 1971, he came out of his house hearing a hue and cry and saw 10 to 12 armed men dragging Madhab out of his house. Taking him [Madhab] by the bank of Tusto Master's [P.W.9] pond, about 300 yards west of their house, Abul Kalam Azad alias Bachchu gunned down Madhab Chandra Biswas to death. He saw the incident in his own eyes from a jute field where he remained in hiding, P.W.8 added. Even in cross-examination, P.W.8, in reply to question put to him stated that remaining in hiding at a jute field he witnessed the event. Defence could not however shake what has been stated by P.W.8 regarding the commission of the crime and direct participation of accused to the actual commission thereof.
244.P.W.8 further testified that afterwards, Gyannedra Mondol a relative of their neighbours Duari Sarder, on seeing accused Bachchu and his accomplices, attempted to escape but he could not as they apprehended him and then Bachchu Razakar (accused) himself had also gunned down Gyanendra Mondal to death at the same spot. In cross- examination, in reply to question put to him by the defence P.W.8 stated that on 16 May 1971 at about 13:00 hrs the gang of armed Razakars led by Bachchu (accused) raided their village.
245.P.W. 10 Tusto Kumar Mondol, a 54-year-old school teacher and a resident of the crime village who is a live witness too has made almost a similar and corroborative description of the killings of Madhab Chandra Biswas and Gyanendra Mondol. He narrated that on 16 may 1971 at about 13:00 hrs armed Abul Kalam Azad @ Bachchu and his 10-12 armed accomplices, entering into their village, first raided the house of Madhab Chandra Biswas. On hearing it the villagers started to escape. After looting Madhab’s house the gang dragged Madhab out of his house and brought him to the east bank of his (P.W.10) pond and remaining in hiding inside a jute field he saw that Bachchu Razakar himself gunned down Madhab Chandra Biswas to death. Defence could not refute the fact of commission of killing and direct participation of the accused with the criminal act of murdering Madhab Chandra Biswas and thereafter Gyanendra was brought there by the co- perpetrators and accused Bachchu himself also shoot him to death by rifle with him.
246.P.W.10 stated further that Abul Kalam Azad was a Razakar commander and his aim was to wipe out the Hindu community and Awami League supporters. P.W.10 stated that as part of the plan of the Pakistani army, killings, rapes, loot and arsons were carried out by the perpetrators led by Bachchu Razakar in Faridpur like everywhere else. This version patently reflects the context of committing crimes targeting the civilian population belonging to Hindu community.
Evaluation of Evidence and Finding
247.The learned Prosecutor while arguing on this charge has submitted that the witnesses who deposed in support of this charge are live witnesses and they had opportunity to witness the event of attack followed by looting and killing of Madhab Chandra Biswas and Gyannedra Mondol. They are natural witnesses and they explained the reason why and how they could recognize the accused at the crime site. Accused had directly participated to the actual commission of the criminal act of murder and the armed gang was led by him to the crime site. Defence failed to dislodge what the witnesses have narrated in their examination-in-chief, on material particulars.
248.Conversely, the learned state defence counsel, refuting the above argument, has submitted that the accused was not involved with the commission of crimes alleged in the charge no.4; that the prosecution failed to prove that the accused was an armed member of Razakar force; that the witnesses examined by the prosecution are not credible and it is not possible to memorize the event accurately.
249.It is true that for the reason of long passage of time human memory may be faded. We have found that the witnesses examined in support of the charge no.4 are live witnesses one of whom is the son (P.W.6) of victim Madhab Chandra Biswas. The trauma and nature of suffering he experienced relate to long term memory which naturally still remains imprinted in his memory and such horrific event never erases from human memory. For similar reason the corroborative version of P.W.8 and P.W.10 cannot be questioned and excluded from consideration.
250.The fact that P.W.6 had occasion to witness the event of atrocious murder of his father remains unshaken. As regard reason as to how he knew the accused, P.W.6, in cross-examination, has stated that he knew Abul Kalam Azad @ Bachchu who had a jute godown at Moindia haat and he had association with Muslim League politics and used to attend meetings at different areas of Saltha and Nagarkanda. He (accused) studied in Faridpur Rajendra College and ‘Bahirdia Madrasa’. Thus, naturally as a resident of same locality P.W.6 had reason to know the accused from earlier. The event took place in broad day light and at a place adjacent to the house of Madhab Chandra Biswas and thus it is quite believable that P.W.6 had opportunity to see the accused shooting his father to death by remaining in hiding inside an adjacent jute field.
251.The corroborative testimony of P.W.8 on the event of murder of Madhab Chandra Biswas and Gyannedra Mondol does not appear to have been tainted by any doubt. Defence, by cross-examining him could not shake what he has narrated as regard commission of the killings and mode of participation of the accused to it. P.W.8 has also corroborated that after the incident 400-500 Hindu residents of the crime village became compelled to deport to India, in fear of Bachchu Razakar and his accomplices.
252.How P.W.8 could recognize the accused at the crime site? This pertinent question needs to be answered. In this regard, P.W.8 stated in his examination-in-chief that accused Abul Kalam Azad @ Bachchu was a student junior to him in Faridpur Rajendra College and he saw him attending numerous meetings of Jamat E Islami and that is why he was acquitted with him. It has been confirmed even in his cross- examination. That is to say, P.W.8 naturally could recognize the accused committing the killings alleged. Thus his testimony inevitably inspires credence.
253.P.W.8 also testified that accused Abul Kalam Azad @ Bachchu and his cohorts committed killings, torture, loot, and arsons during the nine- month-long war to uproot the Hindu community, Awami League supporters, pro-liberation unarmed Bangalees. This version adequately portrays the atrocious activities of the accused and intent to commit such acts during the War of Liberation in Faridpur. This portrayal is a crucial relevant fact in determining culpability of the accused.
254. Defence has not been able to tarnish creditability of P.W.10 in any manner by cross-examining him. Rather, he seems to be a natural witness. P.W.10 knew the accused from earlier as he saw him attending electoral meetings in support of the candidate of the symbol ‘scale’.
255.Concatenation of incriminating facts narrated by the P.W.6, P.W.8 and P.W.10 coupled with relevant facts are suffice to prove the commission of the event of the offence of murder of Madhab Chandra Biswas and Gyannedra Mondol as crimes against humanity and mode of participation of the accused therewith. We have found that it has been established beyond reasonable doubt from the evidence of P.W.6 and P.W.8 and P.W.10 the residents of the crime village and live witnesses that on the date , time and in the manner an armed gang of Razakars led by accused Abul Kalam Azad @ Bachchu had launched attack to the house of Madhab Chandra Biswas who was a supporter of Awami League and after looting the ornaments and households etc., they dragged Madhab Chandra Biswas out of his house and took him to east bank of a pond of P.W.10 where accused Abul Kalam Azad @ Bachchu himself gunned down him to death and afterwards the accused also killed Gyanendra Mondol at the same spot. Attack targeting the Hindu village and killing of Awami League supporter indicates that the criminal acts of looting and murders were part of ‘systematic attack’ in furtherance of policy and plan directed against civilian population.
256.Thus, the criminal acts to the accomplishment of murder are characterized as the offence of crimes against humanity as specified in section 3(2) (a) of the Act as it was directed against civilian population. The accused, as has been proved, had directly participated to the commission of offence of murder as described in the charge no.4 and thus he incurs individual criminal liability under section 4(1) of the Act and he is found guilty for perpetration of the offence as listed in charge no. 04 which is punishable under section 20(2) read with section 3(1) of the Act.
Adjudication of Charge No.05 [Committing Rape upon Devi Rani and Shova Rani]
257.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 is alleged to have attacked the house of Sudhir Biswas @ Gosai Pada Biswas of village ‘Natibodia’ (bvwUew`qv ) under police station Boalmari district Faridpur on 08 June 1971 at about 12:00 hrs , during the War of Liberation and then allegedly committed rape upon Devi Rani and Shova Rani and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘rape as crime against humanity’ by directing attack targeting 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
258.Prosecution adduced and examined two witnesses as P.W.13 and P.W. 14 in support of this charge. P.W.13 Surabala Biswas, now 70-71 years old is the wife of brother of victims’ husbands. P.W.14 Binod Chandra Biswas is the brother of P.W.13’s husband. They have narrated the criminal acts perpetrated by accused Abul Kalam Azad @ Bachchu and his accomplices.
Discussion of Evidence
259.P.W.13 Surabala Biswas stated that at the end of Jaistha in 1971 at about 12:00 hrs Bachchu Razakar and his 10-12 armed accomplices attacked their house with frequent gun firing from the end of southern part of their village. On hearing gun firing the male inmates of their houses remained in hiding inside a jute field nearer to their house. Bachchu Razakar and his accomplices then entering into their house apprehended Devi Rani the wife of Nagen and Shova Rani the wife of Gosai. 2-3 accomplices of Bachchu Razakar had kept them guarded and looted gold ornaments while Bachchu Razakar and his 7-8 accomplices dragged Shova Rani and Devi Rani to the dwelling room of Shova Rani where they keeping them confined for about one and half hour to two hours committed rape upon them, P.W.13 added. After the gang of Razakars had left the place they and the male inmates of the family entering into Shova Rani’s room found her (Shova Rani) and Devi Rani in subconscious condition having biting stain on their face and saw the lower part of their wearing apparel blood stained. They tried to get them settled by pouring water on their heads. Thereafter, Shova and Devi started crying and had told that Bachchu and their accomplices committed rape upon them and they would not be able to expose their face and would not remain in this country.
260.P.W.13 further stated that thereafter, they along with Shova Rani and Devi Rani deported to India and at present Shova and Devi have been residing in India. At the time of incident Shova was 15-16 years of age and Devi Rani was 17-18 years old.
261. P.W.14 Binod Chandra Biswas (62) is a live witness as to some facts crucially related to the charge of alleged rape. He is one of male inmates of victims’ family. P.W.14 corroborating P.W.13 has stated that probably on 08 June 1971(last part of jaistha) Bachchu Razakar and his 8-10 accomplices were approaching toward their village with frequent gun firing and attacked their house. With this he and other male inmates of the family remained in hiding inside a jute field adjacent to their house. Bachchu and his accomplices entering into their house encircled the female members of their family including his boudi Shova Rani, boudi Devi Rani, boudi Surabala(P.W.13) and his mother and afterwards, Bachchu and his 4-5 accomplices forcibly dragged Shova Rani and Devi Rani to the dwelling hut of Shova Rani where they kept them confined for half an hour and then they left the crime site after looting ornaments and households.
262.Ten minutes after the gang left, they the male members of the family entered into house and his mother and boudi Surabala (P.W.13) entering into the room of Shova Rani found her and Devi Rani in subconscious, almost unclothed and bleeding condition, P.W.14 added. They poured water on their heads and thus they regained their sense and had told ‘our chastity has been lost, we do not want to survive, and our everything has been finished’. Shova Rani was wedded 4 moths prior to the event and Devi Rani was married only 6 months before the incident took place. P.W.14 further stated that they thought it not wise to stay further in country and thus on the following morning they along with surrounding Hindu people of 20 other families deported to India. Defence could not shake the testimony of P.W.14 made on material particulars.
263.In cross-examination, P.W.14 stated in reply to questions put to him that he could not say when the local peace committee was formed in Fairpdur in 1971; that whether it was not possible to organize the Razakar force in Faridpur till the gazette notification dated 02 August 1971. In our view, P.W.14 is not supposed to be familiar with all these information which are not at all decisive factors, particularly in relation to charge no.5.
Evaluation of Evidence and Finding
264.The learned prosecutor has argued that P.W.13 and P.W. 14 are live witnesses who have testified how the attack was launched and how the gang led by accused Abul kalam Azad @ Bachchu acted to the accomplishment of the offence of rape. P.W.13 a female member of victims’ family had opportunity to see accused and some of his accomplices dragging the victims to Shova Rani’s room where they kept them detained for one and half hour which together with victims’ version as portrayed by P.W.13 and P.W.14 adequately signify that Shova Rani and Devi Rani were raped and sexually ravished.
265.The learned state defence counsel has argued that the prosecution has not been able to prove that the accused was with the gang to pursue the attack and thus he was not involved with the commission of rape alleged in any manner. P.W.13 a female member of the victims’ family had no prior knowledge about Abul Kalam Azad@ Bachchu and for P.W.14 it was not possible to see as to what was happening inside their house by remaining hiding in jute field and thus the version that P.W.14 that he saw the accused accompanying the gang to the crime site and dragging the victims to Shova Rani’s room is not believable. The charge is tainted by reasonable doubt.
266.Defence, as we find, could not shake what the P.W.13 has stated on material particulars. Rather, the evidence of P.W.13 remains undisputed as well. In cross-examination, P.W.13 in reply to question put to her by the defence stated that she did not know accused Bachchu Razakar but she learnt it from the male inmates of the family that Bachchu Razakar was with the gang of armed perpetrators. The reason why this witness knew that one of members of the gang was Bachchu Razakar is quite natural as it has been corroborated by P.W.14 Binod Chandra Biswas one of male inmates of their family who knew accused Abul Kalam Azad since 1969 as he saw him (accused) attending meetings held in the office of jamat E Islami at Niltuli, Faridpur, as he deposed.
267.In reply to question put by court P.W.14 stated that he knew accused Bachchu from earlier as he saw him attending meetings of jamat E Islami and at the time of alleged event he saw the accused at the crime site. Even in cross-examination P.W.14 has stated that he knew accused Abul Kalam Azad @ Bachchu since 1969 and he saw him attending processions and meetings of Jamat E Islami held in its office at Niltuli, Faridpur. Thus, the reason of knowing the accused even from earlier has been confirmed. In cross-examination, P.W.14 stated that nobody could see them from outside when they were in hiding inside the jute field. Defence however did not suggest that even it was not possible too to see the outside in hiding position inside the jute field. Thus, and common sense suggest us to infer that it was possible to see the outside even in hiding condition inside the adjacent jute field.
268.The matters which appear to have been proved from corroborative evidence of P.W.13 and P.W.14 are that on the date, time and in the manner accused Abul Kalam Azad @ Bachchu and his 10-12 accomplices attacked their village which was predominantly Hindu populated with frequent gun firing and with this the male members of their family remained in hiding inside a jute field adjacent to their house and then the gang attacking their house kept the female members encircled and from them Shova Rani and Devi Rani were segregated and the accused and some of his accomplices dragged them to the dwelling hut of Shova Rani and detained them for one and half hour (as deposed by P.W.13). The other female members were kept guarded by some of accomplices of accused Bachchu. The charge relates to commit rape upon Shova Rani and Devi Rani.
269.None of two witnesses has claimed to have witnessed the alleged rape or sexual abuse upon the victims. The offence of alleged rape is not an isolated crime. The context also is to be viewed together with the criminal acts done. The offence of committing rape particularly if it happened as a part of systematic attack in furtherance of policy and plan is not expected to have taken place in presence of anybody else. Besides, offence of rape or sexual abuse happens in sly. The situation as revealed also speaks sufficiently that it was not possible to see what was happening inside the room of Shova Rani. Thus the criminal acts of accused and his accomplices done to Shova Rani and Devi Rani have to be perceived from the entire facts and circumstance.
270.P.W.14 has proved that ten minutes after the gang left the crime site they the male members of the family entered into house and his mother and boudi Surabala (P.W.13) entering into the room of Shova Rani found her and Devi Rani in subconscious, almost unclothed and bleeding condition. The victims regained their sense as they poured water on their heads and then the victims had told -‘our chastity has been lost, we do not want to survive, and our everything has been finished’. This pertinent extra-judicial version of victims instantly narrated to P.W.14 a female inmate of victims’ family who had opportunity to see the attack and bringing the victims to Shova Rani’s room by the accused and his accomplices could not be shaken in any manner. P.W.14 further stated that they thought it not wise to stay further at their home village and thus on the following morning they along with Hindu members of surrounding 20 other families deported to India.
271.We consider it improbable that the family members would ever invent a false story of sexual ravishment by inviting dishonour and disgrace on two newly wedded girls and on their family. No sane person would adopt such a course even out of any vengeance. Finding Shova Rani and Devi Rani in subconscious, almost unclothed and bleeding condition after the gang led by accused Abul Kalam Azad @ Bachchu left the crime site and the utterance of victims to P.W.14 a female member of the crime house that ‘our chastity has been lost, we do not want to survive, and our everything has been finished’ are strong and material circumstances which prompt us with no dubiety that Shova Rani and Devi Rani were raped and sexually ravished at their own house in furtherance of a part of systematic attack launched by the gang of armed Razakars led by accused Abul Kalam Azad@ Bachchu.
272.A single or limited number of acts on the accused’s part would qualify as a crime against humanity, unless those acts may be said to be isolated. The act of accompanying the gang of armed perpetrators in attacking the house of the victims and keeping them detained in the room of Shova Rani are sufficient to qualify the constitution of the offence of rape as crime against humanity. It is to be borne in mind that in certain circumstances even a single act comprises a crime against humanity when it occurs within the necessary context.
273.The context speaks that it was not possible for civilians to resist the armed perpetrators led by the accused who were actually meant to execute the policy and plan of the Pakistani army and the pro-Pakistan political organization which had acted as its key auxiliary organisation. The pattern of the attack and acts indicates that the gang targeted the house of the victims belonging to Hindu community, a part of civilian population and the accused and his co-perpetrators finding no male inmates at the crime site, approached to cause harm to female members of the family in furtherance of which accused Abul Kalam Azad @ Bachchu and some of his accomplices dragged the victims to Shova Rani’s room where they were kept detained and at that time the other female members were kept guarded by other accomplices outside the room. We thus inescapably consider it just to pen our view that the victims were sexually ravished and the accused cannot be exonerated from criminal liability of committing the offence of rape as crime against humanity as specified in section 3(2) (a) of the Act .
274.The accused Abul Kalam Azad @ Bachchu, as has been proved, had directly participated to the commission of the offence of rape as described in the charge no.4 and thus he incurs individual criminal liability under section 4(1) of the Act and is found guilty for perpetration of the offence listed in charge no.05 which is punishable under section 20(2) read with section 3(1) of the Act.
Adjudication of Charge No 06 [Killing of Chitta Ranjan Das]
275.Summary Charge: On 03 June 1971, during the War of Liberation you, Moulana Abul Kalam Azad @ Bachchu 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 launched an attack targeting the Hindu community of village ‘Fulbaria’ under police station Nagarkanda district Faridpur and started looting the house of civilians. In the course of the event, you and your 7/8 accomplices entering inside the house of Chitta Ranjan Das dragged him out and then you, by the rifle with you, gunned down him to death and thereby the accused 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 targeting 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
276.Three witnesses have been adduced and examined in support of this charge. All the three witnesses i.e P.W.2 Jotsna Rani Das, P.W.4 Dhala Matabbar and P.W.9 Nagen Chandra Mondol are the live witnesses. Of them P.W.2 is the wife of victim of the offence of murder. P.W.4 and P.W 9 are from the crime village and claim to have witnessed the accused accompanying the armed gang of Razakars at the crime site and have corroborated the version of P.W.2, as regard commission of the event of crime and participation of the accused therewith. Now let us see what the witnesses have narrated.
Discussion of Evidence
277.P.W.2 Jotsna Rani Das (60) , the wife of victim of the crime of murder has stated that on 19 Jaistha in 1971 Bachchu Razakar and his 20-25 armed accomplices came to their village by boat and of them accused Bachchu and his 8-9 accomplices attacked their house and the rest of the gang started looting neighboring houses. Entering into their house accused Bachchu apprehended her husband Chitta Ranjan Das and tying him up started beating him by the rifle and then they had looted ornaments and other households. P.W.2 further stated that she attempted to rescue her husband from the clutch of accused Bachchu but he (accused) pushing her down on ground had brought her husband dragging one hundred and fifty yards east to their house where beneath a tree the accused gunned down him to death. Half an hour later, Bachchu Razakar had shot one Badal Debnath to death at a place western side of their house, P.W.2 added. Afterwards, Bachchu Razakar and his accomplices threw the dead bodies of her husband and Badal Debnath by tying legs with a rope to ‘Kumar River’. She could not have trace of her husband’s dead body. 3-4 days after the event she along with her three minor children took shelter at the house of one Malek Bepari and 10-15 days after staying here she and many other Hindu civilians of the locality deported to India. At that time she was pregnant, P.W/2 added. Her three children died at ‘Kalyani’ camp in India and she gave birth of her fourth child on 28 December 1971 and after independence she returned back to home with her new born baby.
278.P.W.4 Dhala Matabbar (61) stated that on 19 Jaistha in 1971 at about 11:00 hrs on hearing crying from the house of Chitta Ranjan when he was on the way to Phulbaria Bazar approached to the crime site and found Bachchu Razakar and his 3 accomplices thrashing Chitta Ranjan. Afterwards, the gang brought Chitta Ranjan out of his house to a place at north side of their house and then Bachchu Razakar shoot him to death with rifle in his hand. Being frightened he (P.W.4) had left the site.
279.P.W.4 has made hearsay testimony as regard killing of Badal Debnath and some relevant destructive acts. He heard from people that Bachchu Razakar and his accomplices looted the house of Chitta Ranjan and the gang of perpetrators, dragging the dead body of Chitta Ranjan tying his legs with a rope threw it to Kumar River. P.W.4 also stated that he heard that Bachchu Razakar and his accomplices committed looting in the crime locality and Bachchu had also shoot Badal Debnath to death.
280.P.W.9 Nagen Chandra Mondol (72) was a resident of the crime village at the relevant time. He stated that he had business of betel leaf in 1971 and he owned a ‘pan baroj’. On 19 jaistha in 1971 at about 11:00 hrs accused Bachchu Razkar of Baro Khardia and his accomplices came to their village by boat and he was accompanied by about 30 accomplices and of them 8-10 members of the gang attacked the house of Chitta Ranjan and the rest of the gang remained scattered around the village. Bachchu Razakar had a rifle with him. Afterwards, the members of the gang led by accused Bachchu committed looting of ornaments and house holds attacking the house of Chitta Ranjan and brought those to their boat. At the time of their exit from the crime site, Chitta Ranjan and his wife (P.W.2) had been in the courtyard of their house and he (P.W.9) remained in hiding inside a ‘pan baroj’ wherefrom he could hear Chitta Ranjan appealing accused Bachchu by saying ‘ Dada you have taken everything, how would I feed my children’. With this accused Bachchu inquired whether the house owned by Chitta Ranjan. Instantly after admission, Chitta Ranjan was tied up and Jotsna Rani Das (P.W.2) appealed to leave him but accused pushing her down started taking Chitta Ranjan out of his house by dragging and he (accused) took him (Chitta Ranjan Das) to the east- north side of their house beneath a tree and then accused Bachchu Razakar gunned down him to death by a rifle with him.
281.P.W.9 stated that he witnessed the event of killing Chitta Ranjan. P.W.9 also stated that after killing Chitta Ranjan when the gang was moving toward south accused Bachchu Razakar also had shoot one Badal Debnath to death which he (P.W.9) witnessed . P.W.9 further stated that they could not trace the dead body of Chitta Ranjan as it was thrown to Kumar River and the gang led by accused Bachchu committed destruction and looting of houses of most of the residents of the crime village, in conjunction of the event.
Evaluation of Evidence and Finding
282.P.W.2 denied the suggestion put to her during cross-examination that accused Abul Kalam Azda@ Bachchu did not accompany the armed gang at the time of committing the attack and crimes alleged and that she did not know the accused. But the commission of event of crimes remains unshaken. How the P.W.2 could recognize the accused? In cross-examination, P.W.2, in reply to question elicited to her has stated that accused Bachchu was a resident of their neighboring village Khardia and he (accused) used to move around the locality and thus she could recognize him at the time of committing the crimes. The reason as stated by P.W.2 is naturally believable. We do not find any reason to exclude her testimony.
283.From the above evidence of P.W.4 it reveals that he witnessed the act of beating Chitta Ranjan Das including the act of shooting him to death by accused Abul Kalam Azad @ Bachchu by a rifle with him. It remains unshaken. Rather, in cross-examination P.W.4 stated that apart from him, wife of Chitta Ranjan (P.W.2), Harun Molla, Nagen Mondol (P.W.9), Jaku Kazi had witnessed the event of killing Chitta Ranjan by the accused. Witnessing the house of Chitta Ranjan Das in destructed condition, as stated by P.W.4 in his cross-examination has confirmed that the attack was launched targeting the house of Chitta Ranjan Das in conjunction of which accused Abul Kalam Azad @ Bachchu gunned down Chitta Ranjan Das to death by a rifle with him. Thus, the event of criminal acts done by the accused at the crime site resulted in murder of Chitta Ranjan Das and looting of their house is well established.
284.Was P.W.4 competent to recognize the accused at the crime site? Was it possible to see the event? P.W.4 in his cross-examination has stated that he knew Abul Kalam Azad @ Bachchu from earlier as his (accused) house was about four kilo meters far from his house and he (P.W.4) saw him (accused) attending electoral meetings in 1970 at Phulbaria Bazar. It was thus probable to recognize a person of neighboring locality who was seen attending public meetings at the locality. Thus, the testimony of P.W.4, particularly in respect of seeing the accused beating and afterwards killing Chitta Ranjan Das carries value and it adds corroboration to the testimony of P.W.2 the wife of victim Chitta Ranjan Das.
285.We have found from first part of testimony of P.W.4 that on seeing the event of killing Chitta Ranjan Das he (P.W.4) became frightened and had left the crime site. Thus, it was naturally not possible to witness the killing of Badal Debnath that took place after the event of killing Chitta Ranjan Das. P.W.2 Jotsna Rani Das the eye witness of the event of killing her husband including the killing of Badal Debnath has stated that, Bachchu Razakar and his accomplices dragging the dead body of her husband and Badal Debnath tying their legs with a rope threw to Kumar River. Thus, the hearsay version of P.W.4 so far it relates to killing of Badal Debnath and throwing the dead body of Chitta Ranjan Das to Kumar River carries much probative value which adds corroboration to what has been stated by P.W.2.
286.Testimony of P.W.9, a live witness has sufficiently and believably corroborated P.W.2 the wife of victim Chitta Ranjan Das and has narrated the event incriminating the accused with the commission of the offence of alleged murder. As regard reason of recognizing the accused P.W.9 stated that he knew accused Abul Kalam Azad @ Bachchu as during 1970-71 he (P.W.9) used to purchase straw for his own ‘pan baroj’ from the house of accused’s uncle. Even in cross-examination he stated that he knew the accused since prior to the War of Liberation and during the war of Liberation he saw him (accused) committing atrocity of looting and at that time he was not bearded. Next, it has been confirmed too in cross-examination that the event alleged was committed on the date time and in the manner and P.W.9 had occasion to witness the event and he witnessed the accused as the actual perpetrator of the criminal act of killing Chitta Ranjan Das and Badal Debnath. Defence has however been failed to shake what has been testified by P.W.9 on material particulars.
287.Having regard to the evidence of P.W.2, P.W.4 and P.W9 we are thus convinced in arriving at decision that the atrocious event of attack launched directing the crime village Phulbaria by the gang of armed Razakars led by accused Abul Kalam Azad @ Bachchu on the date time and in the manner has been proved beyond reasonable doubt. It is inferred unerringly too that intent of acts forming such attack was to cause destructive wrongs to the civilian population. It has also been established that the destructive and atrocious acts that resulted in killing of Chitta Ranjan and Badal Debnath and looting of numerous houses eventually compelled the victims and sufferers of the crime village including the P.W.2 to deport to India leaving their houses and properties. We have found how as a leader of the armed gang of Razakars the accused acted directly in committing the crimes. The event was simply horrific and was done in grave breaches of Humanitarian law and Geneva Convention too.
288.The accused Abul Kalam Azad @ Bachchu being accompanied by his armed accomplices, as has been proved, had directly participated to the commission of the offence of murder and the gang of co-perpetrators led by the accused indubitably had committed the criminal acts as part of the attack directing the civilians belonging to Hindu community and thereby the accused Abul Kalam Azad @ Bachchu is found to have incurred individual criminal liability under section 4(1) of the Act and found guilty for committing the offence of murder as crime against humanity as specified in section 3(2) (a) of the Act which is punishable under section 20(2) read with section 3(1) of the Act .
Adjudication of Charge No. 08 [Anjali Das abduction and torture]
289.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 7/8 armed Razakers entering inside the house of Guru Das, a civilian village dweller of village ‘Ujirpur Bazarpara’(DwRicyi evRvicvov) under police station Saltha district Faridpur s is alleged to have abducted Anjali Das (18) Rani of the crime village on 18 May 1971 at about 10:00 hrs, during the War of Liberation and kept her confined and tortured and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crimes against humanity’ by directing attack targeting 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
290.Prosecution examined three witnesses in support of this charge.P.W.11 Deb Kumar Das is the brother of victim Anjali Das and P.W.12 was a neighbour of victim at the relevant time. P.W.16 is a hearsay witness and not from the crime village Ujirpur, Faridpur. They have testified as to who and how abducted Anjali Das and finally what happened to her.
291.PW11 53-year-old Dev Kumar Das, brother of victim Anjali Das stated that around 3:00 pm on May 18, 1971 Bachchu Razakar along with seven to eight armed men had come to their house and told his (P.W.11) father to hand over his sister Anjali Das to him (accused). But his father turned the proposal down and then Bachchu (accused) and his cohorts took away his sister forcibly. P.W.11 further stated that his father humbly requested the local Muslim leaders of their village to take initiative for her (Anjali Das) release. The matter was then conveyed to Chan Kazi the father-in-law of accused Abul Kalam Azad@ Bachchu and then Bachchu released his sister after seven to eight days and thus his sister returned home in one morning, but her condition was not well. Around 2:30 pm on the same day, cohorts of Bachchu Razakar attacked their house for abducting his sister again. His sister realised that they would take her away again, and then she committed suicide by taking poison to save her honour, P.W.11 added.
292.P.W.11 further stated that after hearing the news of Anjali's suicide, Bachchu's cohorts left the place and afterwards Bachchu came to their house in evening and asked his father to burry Anjali. But his father refused to do it, as they were Hindu and then her (victim) body was cremated accordingly. Nine to ten days after the incident, Bachchu Razakar and his men looted their house and took away even the tin sheets of the roof. Afterwards, they deported to India, P.W.11 added. This pertinent version could not be shaken in any manner by the defence.
293.In cross-examination P.W.11 replied to a question put to him that from his boyhood he knew Abul Kalam Azad @ Bachchu who was a resident of village about 01 kilo meter far from their house and he (accused) was known as Bachchu and he was a class mate of his (P.W.11) brother in Faridpur Rajendra College. This is the reason why he could recognize the accused at the time of abducting his sister Anjali Das. Defence could not impeach the fact of abducting Anjali Das by the accused and his cohorts on the date and in the manner from the house of the victim. It remains undisputed too that the accused came to their house after the victim committed suicide in the wake of a second attack to abduct her (Anjali Das) from their house. P.W.11 stated in cross-examination that he could not say where his sister Anjalai Das was kept confined.
294. P.W.12 Rawshan Ali Biswas(60) a neighbour of the victim stated that on 18 May 1971 on hearing cry he moved toward the house of Deb Kumar Das (P.W.11) and saw the accused Bachchu Razakar and his 10- 12 armed accomplices taking Anjali Das, sister of Deb Kumar Das forcibly. Afterwards, he became aware that Anajali Das was kept confined at the house of Chan Kazi(father-in-law of the accused). Mohammad Kazi was the son of Chan Kazi. After six to seven days, Anjali Das returned home alone and he at about 09:00-10:00 hrs went their house and found Anjali Das ruthlessly sick and she could not even talk, P.W.12 added.
295.In cross-examination too P.W.12 has stated that at the time of abducting Anjali Das he along with Chandu Matabbar, Barkat Chowdhury, Abdul Haque Fakir and some other persons were present at the crime site but they could not resist or protest the gang in fear of gun with them. That is to say, even in cross-examination the fact of abducting Anjali Das by the accused and his armed cohorts has been rather confirmed.
296.How P.W.12 could recognize the accused Abul Kalam Azad @ Bachchu at the time of committing the act of taking away the victim forcibly? It appears that in cross-examination, P.W.12 stated that Bachchu was a Razakar and he used to assist the Pakistani army in identifying the localities and he (P.W.12) saw him (accused) accompanying the Pakistani army. P.W.12 further stated that he knew the accused since earlier and he heard that he (accused) studied in Faridpur Rajendra College. Thus, P.W.12 cannot be said to be incompetent in recognizing the accused at the time of alleged act of abducting Anjali Das. His testimony that he witnessed the incident is quite credible as he was a close neighbour of the victim which remains undisputed.
297.P.W.12, as regard the second part of the event, has stated that on the day victim Anjali Das returned back home Mohammad Kazi and his accomplices came for taking Anjali Das forcibly again and on sensing it Anjali Das committed suicide by taking poison at room of first floor of their house. This fact also remains undislodged. Rather in cross- examination P.W.12 stated that he heard from parents of Anjali Das that Mohammad Kazi (brother-in-law of the accused) was accompanied by Rizu kazi, Mona Kazi and other accomplices made the second attempt of taking away Anjali Das forcibly.
298.P.W.12 stated that 10-12 days after Anjali had died accused Bachchu and his 20-30 armed accomplices attacked the house of Anjali Das and looted and destructed their house and he (P.W.12) himself witnessed it. This post event fact could not be dislodged by the defence and it adequately indicates the intent and reason of launching repeated attack directing the family of the victim belonging to Hindu community, a part of civilian population.
299.P.W.16 Abdul Mannan (56) from village Moindia under police station Boalmari district Faridpur is a hearsay witness. In fact he has testified in support of charge no.7 as a live witness. However, in respect of the event of the offence narrated in charge no.8 P.W.16 has just corroborated P.W.11 and P.W.12 on material particulars.
Evaluation of Evidence and Finding
300.The learned prosecutor has argued that P.W.11 the brother of victim and P.W.12 neighbour of the victim had occasion to witness the event of abducting Anjali Das by the accused and his armed accomplices and it has been proved too that the victim was kept confined for 7-8 days. The fact of confining itself is a proof of causing torture upon the victim.
301.The learned state defence counsel has argued that the accused was not involved with the event alleged and there has been no evidence that Anjali Das was kept confined and tortured by the accused and thus the accused cannot be held criminally responsible for the alleged acts constituting the offence, even if it is taken to be proved.
302.From evidence of P.W.11 and P.W. 12 we have found it proved that on the date time and in the manner accused Abul Kalam Azad @ Bachchu being accompanied by armed accomplices launched attack to the house of Anjali Das and defying oral confrontation they forcibly took away Anjali Das with them. That is to say, the accused is found to have directly participated to the act of abduction alleged. It remains unshaken too.
303.It is also proved that with the intervention of local Muslim elites eventually 7-8 days after abduction the victim was released. Where she was kept confined? P.W.12 stated in cross-examination that later on he heard that the victim was kept confined at the house of Chan Kazi. According to P.W.11, request was made to said Chan Kazi by the local Muslim elites for releasing Anjali Das. Who is this Chan Kazi? Admittedly he is the father-in-law of the accused. It sufficiently indicates that the accused had substantially contributed and facilitated to the act of confinement of the victim Anjali Das with full knowledge.
304. How Anjali Das was tortured? In reality and considering the context of such attack and circumstances revealed it was not possible to know it. But since it is proved that Anjali Das was forcibly abducted and taken away by the accused and his cohorts from their house defying oral resistance, it may be lawfully presumed that the accused substantially contributed in keeping the victim confined at a place selected by him. At the same time it may also be validly presumed that the purpose of keeping the victim under such confinement for 7-8 days was not of course anything lawful and certainly mental and physical harm including sexual abuse was caused to her that resulted in her severe sickness as stated by P.W.12.
305.The fact that on the very day of her release victim Anjali Das committed suicide as Mohammad Kazi and his accomplices attacked their house to abduct her again is proved. Obviously such second attempt of abducting the traumatized victim Anjali Das made her panicked and frightened which eventually forced her to commit suicide. Who is this Mohammad Kazi? As it is found, he was the brother-in-law of the accused. That is to say, the second attempt to take away the victim forcibly was not done without the knowledge of the accused. Rather, the accused may be presumed to have substantially contributed and abetted in launching such second attack.
306.We have found that accused Abul Kalam Azad @ Bachchu was a potential armed member of Razakar force. He is found to have launched attack being accompanied by his armed cohorts with intent to commit criminal acts constituting the offence of crimes against humanity. The accused, in furtherance of policy and plan of the Pakistani army and the organization collaborating it launched such attack directing the Hindu community, a part of civilian population and the criminal acts were done in context of the war of liberation in 1971. Therefore, the accused Abul Kalam Azad @ Bachchu is found to have incurred criminal liability under section 4(1) of the Act and found guilty for committing the offence of abduction, confinement and torture as crimes against humanity as specified in section 3(2) (a) of the Act which is punishable under section 20(2) read with section 3(1) of the Act .
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