Wednesday, March 20, 2013

22 Nov 2012: Sayedee defense closing day 5

The tribunal continued to hear the defence’s closing arguments relating to Sayedee, following on from the previous day (The summary of Sayedee defense closing arguments partly draws from defence lawyer's own notes of proceedings)

Rape of Vanu Shaha
Mizanul Islam went through the evidence
- Anil Chandra Mondon is supporting charge 17 – he is a 19(2) witness and we will deal with the 19(2) issues separately.

- PW 4 – is the only Prosecution witness to support the prosecution case that the Accused used to rape Vanu Shaha. But it was purely hearsay. His credibility is very poor. He admitted that he is convicted in banana theft case. He also admitted that another theft case for theft of trawler is still pending against him.

Member Judge Anwarul Haq (AH) – this trawler thief case may be filed against PW 4 after this case to discredit him.

Mizanul Islam: we have document that it was filed earlier. We did not exhibit this document since PW 4 did not claim that.

Chairman: is pending of a criminal case is sufficient to cast any doubt on the credibility of PW 4?

Mizanul Islam – but PW 4 has one conviction and other pending criminal charges. It shows that he is of questionable character and should not be believed.

- Prosecution claims that PW 3, 5, 12 and 9 also supports charge 17. But none of these PWs mentioned name of Vanu Shaha and alleged that the Accused raped her. They raised general allegation that the accused and other rajakars were involved in raping many women. The Investigation Officer (PW 28) has admitted that none of these witness has said about the rape allegation to him during his investigation.

- Exhibit 35 shows that PW 1 reported in 2009 that there was no rape victim in Zia Nagar area (all the rape victims in this case are alleged to be from this area). So the rape of Vanu Shaha is contradicted by this prosecution witness

Chairman: it is 2009 report. The prosecution case is that after 1971 Vanu Shaha went to India. So, PW 1 in his report may have meant that there was no rape victim in that area in 2009.

Mizanul Islam: no, PW 1 did not mean that in his report. That was a report on the victims of the liberation war. It listed the names of the persons killed, tortured in 1971. So the report regarding rape victim is also for the time 1971 NOT 2009. The prosecution alleged that Vanu Shaha is in India now. Why the IO did not investigate in India to find out Vanu Shaha. Her other family members (3 brothers their wives) are still living in Pirojpur. Why the IO did not take statements from these family members to prove Charge 17?

Tribunal: if Vanu Shaha left for India after 1971 it proves that she must had been raped.

Mizanul Islam: but does it proves beyond reasonable doubt that she was raped. Moreover where is the evidence against the Accused. IO (PW 28) admitted that he did not interview any rape victim. Why he did not look for Vanu Shaha?

Chairman: He may have looked for Vanu Shaha and did not get her. It may also be that she was not ready to give Interview.

Mizanul Islam: IO has admitted in cross examination that though he went to India for Investigation, he did not look for the rape victims.

- PW 5 said in cross examiantion that a Rajakar called Moslem Mowlana used to stay with Vanu Shaha as husband. This is supported by DW 5 and 10. They said that Moslem Mowana used to claim that he married Vanu Shaha. DW 5 testified that Vanu Shaha told him that Moslem Mowlana caused her a great loss.
Adjourned for lunch
The lawyers continued with his case relating to Vanu Shaha
Mizanul Islam: In cross examiation, the IO said on 14.05.12 and 19.7.12 that that he went to India for investigation of this case. It is alleged by the prosecution that all the rape victims of this case went to India after liberation war. But IO admitted that he did not try to find any of the rape victim in India.

- It was not the prosecution case that Vanu Shaha was kept by the Pakistani Army for rape. But PW 2 in his evidence in chief said that the Pakistani Army kept her in their custody and raped her. This witness alleged series of other allegations against the Accused. But when he was talking about rape of Vanu Shaha he said it was Pakistani Army. If the Accused was really involved in raping Vanu Shaha why was PW 2 not named? He is the only prosecution witness who was Vanu Shaha’s neighbor.

- Refering to 41 DLR 274 he said that High Court Division that if a PW is not declared hostile then the prosecution cannot claim that part of his statement is unreliable. The prosecution did not call PW 2 a hostile so they cannot say that his part of statement regarding rape of Vanu Shaha cannot be relied upon.
Mizanul Islam then summarized his submission in relation to charge 17.
The prosecution’s only evidence to support Charge 17 is PW 4 and he is a hearsay. PW 4’s credibility is seriously questionable since he is a convicted person. PW 2 has talked about rape of Vanu Shaha by Pakistani Army for several months. This contradicts the prosecution case as they are claiming that the Accused used to rape Vanu Shaha. The other PWs did not say anything about rape of Vanu Shaha. Prosecution is claiming that Vanu Shaha went to India after liberation war. The IO (PW 28) went India during investigation but admitted that he did not investigate about whereabouts of Vanu Shaha in India. Vanu Shaha’s three brothers and their wives are still living in Pirojpur. The IO deliberately did not make them as PW. So Vanu Shaha’s family members are not asked to testify. PW 2 is the Only witness who was Vanu Shaha’s neighbor. PW 2 raised series of allegation against the Accused. But when the prosecution asked him about Vanu Shaha, he did not name the accused. He said that the Pakistani Army used to rape Vanu Shah. If the accused was really involved, why PW 2 not name him. PW 5 also admitted in cross examination that one Rajakar called Moslem Mowlana used to live with Vanu Shaha as her husband during the liberation war. DW 5 and 10 also confirmed this. PW 5 did not name the Accused for raping Vanu Shaha. So the prosecution failed to prove Charge 17.

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