Adjudication of Charge No. 3 [Sohagpur mass killing]
291. Summary Charge: During the period of War of Liberation, on 25.7.1971 in the early morning, accused Muhammad Kamaruzzaman being chief organiser of Al-Badar Bahini as well as leader of Islami Chatra Sangha or member of group of individuals advised your accomplices belonging to Al- Badar and Razaker Bahini who accompanied the Pak army in contemplating and taking steps towards commission of large scale massacre, to raid the village Sohagpur and accordingly they launched planned attack and murdered about 120 unarmed civilians including the 44 victims as named in the paragraph 8.7 of the Formal Charge and committed rape upon women of the said village and thereby Muhammad Kamaruzzaman has been charged for participating, substantially facilitating and contributing to the commission of offences of ‘murder as crime against humanity’ or in the alternative for ‘complicity to commit such crime’ as specified in section 3(2)(a)(h) of the Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act.
292. Prosecution adduced and examined as many as 05 witnesses in order to substantiate this charge. Of them P.W.11, P.W.12 and P.W.13 are the victims of sex violence who have been examined in camera as prayed by the prosecution. P.W.2 Monwar Hossain @Mohan Munshi was a member of Al- Badar and at the relevant time he had been working as a guard of Al-Badar camp set up at Suren Saha’s house, Sherpur and he had opportunity to see and know the activities of accused Muhammad Kamaruzzaman who was the leader of the camp, as claimed. P.W.10 Md. Jalal Uddin [one of victims of the massacre] is the son of martyr Safir Uddin of crime village Sohagpur. He narrated the horrendous event of massacre.
293. We have already found in adjudicating charge no.2 that P.W.2 Md. Monwar Hossain Khan @ Mohan Munshi (63), a member of Al-Badar was attached to the camp set up at Suren Saha’s house as a guard as directed by the accused Muhammad Kamaruzzaman and in this way he worked at the camp for the period of 4-5 months and not exceeding 07 months. It has also been proved that accused Muhammad Kamaruzzaman used to attend meetings on the first floor of the Al-Badar camp and he [P.W.2] and his ‘sir’ Kamaruzzaman [accused] had fled together from the camp two days before Sherpur was liberated. As regards the event of Sohagpur massacre P.W.2 does not claim to have witnessed the event. But Monwar's (P.W.2) duty as a guard of the Al-Badar camp that had been set up at Surendra Saha's house in Sherpur gave him the opportunity to witness Kamaruzzaman's [accused] activities during the war in 1971.
294. P.W.2 stated that one day during the war of liberation, he learnt Kamaruzzaman [accused] holding a meeting at the upper floor of the camp and Kamaruzzaman [accused] told that freedom fighters had reached Sohagpur village and they had to lay blockade to the village. Afterwards, they went to lay siege to the village and Al-Badar commander Kamaruzzaman also went there. In the following morning, he saw that many dead bodies were brought by truck and then those were brought to the Municipality Park where his ‘sir’ Kamaruzzaman [accused] said that they had killed them by carrying out ‘operation’ and Razakars had also taken part in the operation.
295. The above version implicating the accused Muhammad Kamaruzzaman with the act of orchestrating design and providing advices of carrying out the ‘operation’ at Sohagpur village could not be dislodged in any manner. Besides, on cross-examination, P.W.2 has re-affirmed that ‘Sohagpur massacre’ took place three and half months after he was attached to the Al- Badar camp as a guard. Thus, the commission of the event of ‘Sohagpur massacre’ and conduct of the accused facilitating the accomplishment of the event of criminal acts remain unshaken.
296. P.W.2, on cross-examination, stated that his boss Kamaruzzaman [accused] was a high flyer. He [accused] used to accompany Majors [of the Pakistani army]. If he [accused] wanted to, he could have turned Sherpur upside down. This version depicts the superior position and level of authority of accused Muhammad Kamaruzzaman over the Al-Badar members of the camp in Sherpur including the Pakistani occupation army.
297. P.W.10 Md. Jalal Uddin(62), the son [victim of the massacre] of martyr Safir Uddin of crime village Sohagpur stated that on 25 July 1971 at about 7:00am the Pakistan army along with Razakars and Al-Badar men came to Sohagpur village around. On being informed of it by his younger brother he remained in hiding at a nearby place, while his brother hid himself in their granary. He heard frequent gun firing and after sometime, when the shooting stopped, he saw dead bodies of Mantaj Ali, Sahid Alim, Abul Bashar and Hashem Ali lying on the eastside of Suruj Ali's house. When he came to his house running, he saw 11 bodies in their home yard. He found the dead bodies of his father Safir Uddin, his paternal uncle Kitab Ali, his cousin Monnas Ali, and Mohammad Ali, Momin Mia, Kutum Uddin, Rejot Ali and Iman Ali and some other unnamed people were lying there. Of them, Iman Ali was still alive but when Jalal and Iman's wife took him to his house's veranda, Iman died. They buried the bodies in three graves.
298. P.W.10 further stated that after the mass killing they took shelter in Jugli village and returned to his own village three days later and had tried to know from the people as to how the event of massacre took place. With this the elderly people of the crime locality who were alive described that 245 civilians of Sohagpur and Benupara village were killed on that day. They also told that Baka Bura, Nasa and Kadir Doctor were Razakars and Kamaruzzaman [accused] was their chief. They committed the massacre after bringing the Pakistan army to the villages.
299. Defence could not dislodge the above version of P.W.10. Rather the commission of the event of alleged indiscriminate mass killing directing the civilians of the crime village Sohagpur remains undisputed. Defence cross- examined him merely to stain his credibility. However, on cross-examination, P.W.10 stated that Razakar Baka Bura, Nasa and Kadir Doctor were the residents of their locality. Thus, P.W.10 had reason to know them even since prior to the event alleged.
300. P.W.11 Hasen Banu (58) survived wife of victim Shaheed Abdul Latif of Sohagpur village. She narrated the event of massacre. She stated that during the war of liberation on 10th Sravan [corresponding to last part of July] her husband went out for 'haal chash' and she was about to cook at house. Suddenly at about 09:00 in the morning she heard gun firing and with this she having her child and father-in-law and mother-in-law moved to western side of house and remained in hiding. Afterwards on returning home at about 04 pm she found dead body of her husband lying at the home yard and there were dead bodies of two more persons who were Zahurul Haque and another one was her brother's son Ansar Ali. At dawn their dead bodies were buried. P.W.11 further stated that Al-Badar Kamaruzzaman, [accused] who was a big leader, Razakar Nasa, Baka bura, Mozaffar conspired in killing her husband and others. On the preceding day at about 10 am three army men and Al- Badar chasing a girl forced to enter inside her house and then she was sexually ravished by one army man and the rest two remained at the door and had shown gun to her and afterwards they sexually violated her despite her repeated appeal .
301. On cross-examination, P.W.11 stated that the girl who was brought to her house by chasing was from village 'Kakorkandi' but she could not tell her name. She also stated that the persons were killed pretending them to be ‘Mukti’. P.W.11 denied the suggestion that her husband was killed only by the military men. P.W.11 has re-affirmed it that Al-Badar and Razakars also killed her husband. P.W.11 has re-affirmed it too, on cross-examination, that Nasa, Bagabura, Mozaffar and Al-Badars also accompanied the Pakistani army [at the time of the attack causing massacre]. This piece of version gets corroboration from evidence of P.W.10.
302. P.W.11 in reply to question elicited to her by the defence stated that she could not say as to where and how Kamaruzzaman [accused] designed the conspiracy. It is thus quite hidden in this reply that, in other words, the fact of designing conspiracy by accused has been admitted. We have found that P.W.11 is an illiterate rural woman who naturally cannot be expected to know about it in detail. Further, the act of 'conspiracy' cannot be expected to have been designed in public. It may be well inferred from circumstances and relevant facts.
303. P.W.12 Hafiza Bewa (56) also lost her husband in 1971 at the time of the event of mass killing as narrated in charge no. 3. She heard from the local elderly people that on 10 Sravan in 1971 at about 07:00 AM the Panjabees [Pakistani army], Al-Badar, Razakars and Kamaruzzaman [accused] of Sherpur had killed her husband Ibrahim. P.W.12 further stated that Kadir doctor, Baka Bura accompanied the gang and in conjunction of the event Pakistani army entering her house had hurt her by a rifle with which she fell down and then they ravished her [P.W.12 started shedding tears while testifying it]. P.W.12 next stated that on the same day Kadir doctor, Baka Bura had sexually ravished Korfuli Bewa [P.W.13], Samla Bewa and accused Kamaruzzaman was also with them. The perpetrators also killed her Uncle Seraj Ali, Khejur Ali, her brother Abul Hossain and many others.
304. The fact of killing of husband and relatives of P.W.12 and committing rape upon her and others as stated by her remain unshaken. Rather her testimony lends corroboration to P.W.10 and P.W.11. On cross-examination, P.W.12 has re-affirmed it that on 10 Sravan [04th month of Bangla calendar] in 1971 at about 07:00 am that the perpetrators had killed her husband while he was running back to home from field. She knew Kadar doctor, Baga Bura since earlier as their houses were about half mile far from her [P.W.12] house. Thus, naturally P.W.12 could recognize Kadar doctor, Baga Bura accompanying the gang of perpetrators.
305. P.W.13 Korfuly Bewa is another widow who lost her husband consequent to the horrendous massacre. She stated that on the day of event i.e 10 Sravan in 1971 in the morning she heard gun firing from the end of the field where from her husband returned back to home and then two Panjabees [Pakistani army] accompanied by Boga Bura, Nasa, Kamaruzzaman [accused] came and inquired whether her husband was a ‘Mukti’[ freedom fighter] and then they gunned down her husband. They also killed her sister’s husband. Afterwards, they, leaving the dead bodies, fled to Nakla and three days after returning to home they found her husband’s dead body consumed by dogs and foxes. They buried the skull and bones of her husband and again fled to village Nakla. Three days after they returned back to home and then Panjabees [Pakistani army] again came there and ravished her. The Panjabees were accompanied by Baga Bura, Nasa, Muje and Kamaruzzaman [accused].
306. The fact of mass killing and rape committed upon her as narrated by P.W.13 could not be materially dislodged by the defence. P.W.13 is an illiterate pastoral woman. She knew Baga Bura Nasa, Kadir doctor since prior to the war of liberation as she had occasion to see Baga Bura around their house and she heard their name as the leaders of Al-Badar. P.W.13 has re- affirmed it, on cross-examination. For obvious reason, general perception was the source of knowing who activists of Al-Badar were and for an illiterate rural woman it is not likely to display any document to authenticate her knowledge, as suggested by the defence.
307. Mr. A.K.M Saiful Islam the learned Prosecutor has submitted that it has been proved from evidence of P.W.2 that the accused by providing advices and support to his fellow Al-Badars of the camp participated in carrying out the operation by launching attack at Sohagpur village. Four victims [prosecution witness nos. 10-13] have narrated the event and presence of the accused at the crime site. The operation was destructive in nature and in conjunction of the event the perpetrators committed sexual ravishment on women. Instantly after the massacre the survived and sufferer villagers were compelled to flee to another village leaving their homes and property, in consequence of destructive pattern of the attack. The event truly falls within the definition of ‘genocide’ as specified in section 3(2)(c) (i) of the Act of 1973 instead of ‘crimes against humanity.
308. The learned Prosecutor Nurjahan Mukta has submitted that three rape victims stood on dock in narrating the trauma they sustained in conjunction of the event of mass killing at Sohagpur village[ as listed in charge no.3] . Indiscriminate sexual invasion caused to them and other women not only increases the gravity of the entire event but it reflects that the serious bodily or mental harm caused to them was with intent to destroy, either whole or in part, the women community or group of Sohagpur village which constituted the offence of ‘genocide’. In support of her submission, the learned prosecutor has cited the decision of the ICTR Trial Chamber in the case of Akayesu wherein it has been held that rape and other form of sexual violence constitutes genocide in the same way as any other act as long as they were committed with specific intent to destroy, in whole or in part, a particular group.
309. The learned defence counsel has argued that the accused has been indicted with the charge of providing ‘advice’ to the Al-Badars of the camp for carrying out the operation at Sohagpur village. But there is no proof as to how he advised and such advice substantially contributed to the commission of the principal crimes alleged by the perpetrators. The charge lacks of corroborative and credible evidence. The act of providing ‘advice’ akin to ‘ordering’ which can only be made by a superior. But the accused has not been charged under section 4(2) of the Act of 1973 for ‘superior responsibility’ and as such he cannot be held responsible, on this score too.
310. Referring the observation made in paragraph 174 of the judgment in the case of Pauline Nyiramasuhuko the learned Prosecutor Ms. Tureen Aforz went to add that the Tribunal may arrive at decision even on the basis of single testimony and ‘corroboration’ is simply one of factors to be considered in assessing witness’ credibility. Paragraph 174 of the judgment of the above cited case reads as below:
“There is no requirement that convictions be made only on evidence of two or more witnesses. The Chamber may rule on the basis of a single testimony if, in its opinion, that testimony is relevant and credible. Corroboration is simply one of potential factors in the Chamber’s assessment of a witness’ credibility. If the Chamber finds a witness credible, that witness’ testimony may be accepted even if not corroborated. [Nyiramasuhuko, ICTR Trial Chamber, 24 June 2011, para 174]311. Tribunal notes that mere inter and intra consistency in testimony does not make a witness unreliable and the entire testimony of witness cannot be excluded from consideration. We reiterate that where a significant period of time has elapsed between the acts charged in the indictments and the trial, it is not always reasonable to expect the witness to recall every detail with precision. Besides, lack of precision or minor discrepancies between the evidence of different witnesses, or between the testimony of a particular witness and a prior statement, while calling for cautious consideration, is not regarded in general as necessarily discrediting the evidence. We are to evaluate the evidence presented before us keeping some inevitable factors in mind together with the settled jurisprudence.
312. The charge framed does not allege that the accused directly or physically had participated to the commission of the crimes. The accused has been charged for complicity to the commission of the offence alleged .Now, we are to see how the accused acted and conducted to the accomplishment of the substantive horrific crime that took place at Sohagpur village. It appears that the defence could not dislodge the version relating to the commission of the event of attack causing indiscriminate mass killing directing the civilians of the crime village Sohagpur, as stated by P.W.10. Defence cross-examined him merely to tarnish his credibility. However, on cross-examination, P.W.10 stated that Razakar Baka Bura, Nasa and Kadir Doctor were the residents of their locality. Naturally P.W.10 had reason to know them even since prior to the event alleged. Thus it stands proved that local Razakars also accompanied the gang of perpetrators to the crime site.
313. The facts of killing of husband and relatives of P.W.11, P.W.12 and P.W.13 and committing rape upon them, in conjunction of the attack, as stated remain unshaken. They heard that accused Kamaruzzaman also accompanied the perpetrators. However, they have testified that local Bangalee perpetrators Razakar Nasa, Bagabura, Mozaffar, Kadir doctor accompanied the gang at the time of committing the atrocities. According to them they also heard from local elderly people, later on, that accused Muhammad Kamaruzzaman also accompanied the perpetrators at the crime site. This piece of hearsay evidence of rape victims who also lost their husbands inspires credence and cannot be excluded. Presence of local Razakars at the crime site is not disputed. Thus, presence of the accused with them at the crime site, as heard by the P.W.11, P.W.12 and P.W.13 from the local elderly people is considered to be believable and natural.
314. We have found from evidence of P.W.2, the guard of the Al-Badar camp that the Al-Badars [of the camp] went to lay siege to the village Sohagpur and Al-Badar commander Kamaruzzaman also went there. Thus not only by act of providing ‘advices’ to fellow Al-Badars but the accused accompanied the perpetrator Al-Badars, local Razakars and Pakistani army to the crime site, as stated by the P.W.10, P.W.11, P.W.12 and P.W.13 . Merely for the reason of inconsistencies in their testimony which is quite natural, for the lapse of long passage of time, their version cannot be turned down terming it to be untrue. They have testified the event of killings and committing rape upon them by the perpetrators. But the defence could not able to make the very facts of killing of their husbands as well as of having sexual ravishment by the perpetrators untrue, by cross-examining them.
315. Therefore, it stands proved beyond reasonable doubt that the numerous civilians were killed pretending them to be ‘Mukti’, as stated by P.W.10 , P.W.11 ,P.W.12 and P.W.13 fits to the evidence of P.W.2 who has testified relating to the design orchestrated at Al-Badar camp set up at Suren Saha’s house, Sherpur for launching an invasion targeting freedom fighters[civilians] staying at Sohagpur village. Defence however does not dispute the event of mass killing as narrated in the charge.
316. It has been argued by the learned defence counsel that D.W.1’s [defence witness] father was also killed by the Pakistani army during the attack launched at Sohagpur village causing grave massacre. He witnessed the event but does not support, while testified before the Tribunal, the alleged presence of the accused at the crime site. Defence has attempted to show by exhibiting two books [Exhibit-A and B] that the same do not narrate complicity of the accused with the event alleged in any manner.
317. In a criminal trial, onus to prove the indictment squarely lies upon the prosecution and defence is not needed to prove innocence and any negative assertion. The Tribunal does not find even a hint as to in support of which defence or a definite plea of alibi D.W.1 has been examined. Rather it appears that D.W.1 has corroborated the event of massacre at Sohagpur village as narrated in charge no.3 by raising finger to Nasa, Kadir doctor and the Pakistani army who were responsible for the atrocities, although he remains silent as to complicity of the accused. Two books have been exhibited by this D.W.1 who stated that those narrate the event of Sohagpur massacre.
318. It is to be noted that the prosecution witnesses examined in support of the charge no.3 have testified that at the time of commission of the crime accused Muhammad Kamaruzzaman, Boga Bura, Nasa, Kadir doctor, the local collaborators whom they knew since earlier, were with the Pakistani troops. For obvious reason, D.W.1 carefully avoided mentioning the name of the accused as accomplice of the principals, although he seems to have corroborated what has been testified by the prosecution witnesses.
319. Understandably, defence admitting the perpetration of the horrific event of Sohagpur massacre committed on the date and time submitted those two books predominantly aiming to exclude complicity of the accused Kamaruzzaman as the same do not include any narration implicating the accused with the event. That is to say, the two books have been admitted into evidence and marked as exhibit-A, B merely to substantiate a ‘negative assertion’. But according to the settled jurisprudence a ‘negative assertion’ is not required to be proved by adducing evidence.
320. The Tribunal notes that mere non-describing the name of the accused involving him with the commission of the event in those books does not ipso facto helps the defence to disprove prosecution case. Besides, authenticity of information narrated in these books raises reasonable question. Because the author himself seems to be not convinced about what he describes therein. Thus we are not persuaded to assume the authoritative value of Exhibit-A and B, in determining the accountability of the accused.
321. It may be validly perceived that the defence by examining D.W.1 has attempted to exclude accused’s presence at the crime site and complicity with the crimes committed which becomes futile. Besides, despite absence of physical participation even one may be held ‘concerned with the commission’ of the principal crime if he is found to have had ‘complicity’, even by his single act, to the commission of the crime. According to the charge framed the accused was concerned with the commission of event of massacre by his act of providing advice and explicit approval to the Al-Badar members of the camp which needs to be unearthed from the facts related to his conduct and also from his act before and after the event occurred. Thus, the evidence of D.W.1 can no way be considered as decisive as to success or failure of the charge no.3 brought against the accused.
322. It is evinced from testimony of P.W.2, the guard Al-Badar of the Al- Badar camp at Suren Saha’s house, Sherpur that one day during the war of liberation, Kamaruzzaman [accused] holding a meeting on the upper floor of the camp and Kamaruzzaman [accused] told that freedom fighters had reached Sohagpur village and they had to lay blockade to the village. Afterwards, they went to lay siege to the village and Al-Badar commander Kamaruzzaman also went there.
323. The above version implicating the accused Muhammad Kamaruzzaman with the act of designing ‘operation’ by providing advices of carrying out operation at Sohagpur village and participating in actual accomplishment of the operation forming attack could not be dislodged in any manner predominantly when it is proved from evidence of P.W.2 that afterwards many dead bodies were brought by truck to the Municipality Park, Sherpur where Kamaruzzaman [accused] uttered that they had killed them by carrying out operation and Razakars had also taken part in the operation. It thus patently proves that the accused Kamaruzzaman had significant complicity to the commission of the crime of mass killing and rape committed at Sohagpur village and he cannot evade criminal responsibility even if it is not proved that he himself was present at the crime site at the time of committing the mass killing constituting the offence of crimes against humanity.
324. The notion of complicity encompasses ‘designing plan’ or ‘advising’ the accomplices and aiding encompasses ‘instigation’ or ‘encouragement’ or ‘moral support’. After bringing the dead bodies to the Municipality Park by truck the declaration of accused Muhammad Kamaruzzaman that they had killed them by carrying out ‘operation’ and Razakars had also taken part in the operation is considered as an unequivocal demonstration of his [accused] complicity to the actual commission of the massacre. Cumulative effect of the conduct of the accused prior to the event and that of the accused subsequent to the event goes to show beyond reasonable doubt that the accused Muhammad Kamaruzzaman had ‘participated’ to the commission of the crimes alleged.
325. It is to be noted that proof of all forms of criminal responsibility, through participation in any manner can be given by direct or circumstantial evidence. It is now settled jurisprudence. The acts of the accused do not always need to be committed in the midst of the attack provided that if they are sufficiently connected to the attack. This view finds support from the decision of Trial Chamber, ICTY in the case of Limaj,[ November 30, 2005, para 189]. Additionally, we have got a picture from evidence of P.W.2 about status or position and authority of the accused on the strength of which he used to assert significant influence over the Al-Badar camp and also use to maintain close and active affiliation with local Pakistani army officials. It remains unshaken that accused Muhammad Kamaruzzaman was a high flyer who used to accompany Majors [of the Pakistani army], and if he wanted to, he could have turned Sherpur upside down.
326. Tribunal notes that ‘participation’ may occur before, during or after the act is committed. ‘Participation’ encompasses providing advices, encouragement, and moral support to commit the crime. Conduct or behaviour of the accused i.e holding meeting with Al-Badar members and advising them to launch attack directing the civilians residing at Sohagpur village clearly constitute significant instigation or abetment of the perpetrators of the crime and thereby the accused incurs liability for participation to the accomplishment of the mass killing at Sohagpur village.
327. It is not alleged, in the charge framed, that the accused himself directly participated to the commission of the crime, although his presence at the crime site appears to have been claimed by the witnesses [victims]. But merely for this reason the accused cannot be relieved from liability if he is found to have acted in such a manner that substantially facilitated the actual commission of the event of alleged massacre. The accused himself need not have participated in all aspects of the alleged criminal conduct. It has been observed in the case of Blaskic that :
“The actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated [Blaskic, (Appeals Chamber), July 29, 2004, para. 48].328. In the case of Tadic, (Trial Chamber), May 7, 1997, para. 691 it has been observed that :
“Actual physical presence when the crime is committed is not necessary . . . an accused can be considered to have participated in the commission of a crime . . . if he is found to be ‘concerned with the killing.’329. Evidence demonstrates that a large scale killing of 245 non combatant civilians, massive sexual violence and internal displacement of civilians creating reign of intense horror were perpetrated targeting the unarmed civilians of village Sohagpur. We have found from evidence of P.W.2 accused Muhammad Kamaruzzaman by holding a meeting at the Al-Badar camp told that ‘Mukti’[freedom fighters] had reached Sohagpur village and they had to lay blockade to the village. It is clear that in furtherance of such ‘prior design’ or ‘decision’ the massacre was perpetrated at Sohagpur village and by carrying out the ‘operation’ to mash the civilians the perpetrators had killed 245 unarmed civilians.
330. The freedom fighters and pro-liberation Bengali people assisting them were treated as ‘miscreants’. They were the target of the Pakistani occupation army. In furtherance of plan and policy they were so targeted. Even reward was announced for causing their arrest or to provide information about their activities. A report titled “ miKv‡ii wm×všÍ : `y®‹...wZKvix‡`i †MÖdZvi ev Le‡ii Rb ̈ cyi ̄‹vi †`Iqv n‡eÓ published on 25 November 1971 in The Daily Pakistan [‰`wbK cvwK ̄Ívb] demonstrates it patently. The report, pursuant to a government press note, termed the ‘miscreants’ in five classes which is as below:Unclear text331. Thus plan was not only to liquidate the freedom fighters but to wipe out the pro-liberation Bengali people who were in favour of freedom fighters by providing them shelter, information and who were engaged in writing in favour of them. Unambiguously, Al-Badar, an action section of Jamat E Islami [JEI] had acted accordingly in accomplishment of such policy and plan.
[Source: Sangbadpatre Muktijuddher Birodhita: Ekattorer Ghatakder Jaban Julum Sharajantra: Edited by Dulal Chandra Biswas: Bangladesh Press Institute: March 2013 Page 324]
332. Attacking mainly the credibility of P.W.11, P.W.12 and P.W.13 the learned defence counsel has submitted that these witnesses are tutored and untrustworthy as their statement made on dock suffers from material inconsistencies and discrepancies. Their discrepant hearsay statement does not prove accused’s presence at the crime site.It has been further argued that P.W.11, P.12 and P.W.13 are not reliable witnesses as they did not state earlier to the IO what they have testified before the Tribunal. Besides, P.W.2 does not claim to have had occasion to be present at the time of alleged planning at Al-Badar camp. They have made exaggeration before the Tribunal.
333. The Tribunal notes that mere omission in narrating event with detail precision is not ‘contradiction’ and does not impair witness’s sworn testimony. Accused was a potential leader of Al-Badar of greater Mymensingh and he had acted as the chief organizer of Al-Badar, it stands proved. Naturally within the geographical area of greater Mymensingh, it became an anecdote to the civilians. Therefore, hearing the fact of presence and accompanying the gang of perpetrators at the crime site from the local elderly residents by these women victims who sustained immense trauma offers credence.
334. Tribunal further notes that exaggerations per se do not render the evidence brittle. Inconsistencies in different statements from the same witness do not necessarily mean the witness is unreliable. Besides, it is not unlikely that after the crime or event, the witness will hear more about it with others, who also may have been at the same place. When giving his statement or testimony, he will reproduce what he has seen and heard, attributing his information to his eye witness status while in reality he has acquired the information from post hoc sources.
335. We are not convinced to accept the argument extended by the defence on ‘inconsistencies’ and discrepancies of witnesses’ testimony or the witnesses have made lied statement before the Tribunal. Naturally inconsistencies and discrepancies [inter and intra] may occur in witnesses’ testimony. Inconsistency is a relevant factor in judging weight but need not be, of itself, a basis to find the whole of a witness’ testimony unreliable [ Prosecutor v. Delalic, ICTY Appeal Chamber, Case No. IT-96-21-A, 20 February 2001, para 496].
336. A witness may recall only the core fragmented events, not details. The Akayesu judgment notes that discrepancies could be due to the fallibility of perception and memory and the operation of the passage of time:
“The majority of the witnesses who appeared before the Chamber were eye-witnesses, whose testimonies were based on events they had seen or heard in relation to the acts alleged in the Indictment. The Chamber noted that during the trial, for a number of these witnesses, there appeared to be contradictions or inaccuracies between, on the one hand, the content of their testimonies under solemn declaration to the Chamber, and on the other, their earlier statements to the Prosecutor and the Defence. This alone is not a ground for believing that the witnesses gave false testimony [...] Moreover,337. In the case in hand, the hearsay statement made by the rape victims gets corroboration from the evidence of P.W.10. Besides from evidence of P.W.2 it is proved that the accused provided advice to the Al-Badar members of the camp, by holding meeting, to launch an attack to Sohagpur village. The act of providing ‘advice’, in other word, was a substantial kind of assistance and explicit approval by orchestrating a common plan to facilitate the actual commission of the crime. The act of providing ‘advice’ entails a person in a position of authority using that position to convince and approve another to commit an offence. It is also demonstrated from P.W.2’s evidence that after providing such ‘advice’ the accused left the camp. Advice given by the accused rather instigated and prompted the Al-Badar members of the camp to activate the design of launching the attack. Therefore, the contribution of the accused Muhammad Kamaruzzaman, the leader of Al-Badar had an effect on the commission of the crime of mass killing and rampant rape. It is not necessary to prove that the principal crime of massacre committed at Sohagpur village would not have been perpetrated without the accused’s direct participation. On this score as well the accused incurs liability for the crimes alleged in charge no.3.
inaccuracies and contradictions between the said statements and the testimony given before the Court are also the result of the time lapse between the two. Memory overtime naturally degenerates, hence it would be wrong and unjust for the Chamber to treat forgetfulness as being synonymous with giving false testimony.”[Akayesu case, ICTR, para. 140]
338. On cumulative appraisal of statement made P.W.11, P.W.12 and P.W.13 in examination-in-chief and cross-examination as well it is depicted that an operation was carried out causing killing of hundred of civilians including husbands of P.W.11, P.W.12 and P.W.13 at the relevant time and the mass killing was perpetrated by the Pakistani army and Al-Badar and Razakars; the military accompanying the gang sexually debased them and many others. It also reveals from circumstances together with the testimony of P.W.2 that the massacre was committed in furtherance of prior design orchestrated on accused Muhammad Kamaruzzaman’s advice at Al-Badar camp at Suren Saha’s house, Sherpur. Thus the accused was significantly concerned with event of mass killing and rapes committed at Sohagpur village. Involving with designing plan or providing advices constitute the act of ‘abetment’ and ‘instigation’ which makes him [accused] ‘concerned;’ with the commission of substantive crime.
339. Thus the totality of evidence of all these P.W.s shows a demonstrable link of the accused to the actual commission of Sohagpur massacre. Indisputably, the hearsay statement of P.W.11, P.W.12 and P.W.13 seem to be reasonably credible. As regards inconsistencies occurred in their testimony we acknowledge the impact of trauma upon them, the victims and their ability to recount the events with clarity and detail. Earlier statement made to Investigation officer is not evidence and any omission in stating any fact to the IO which substantially does not necessarily affect wetness’s sworn testimony unreliable cannot be treated as glaring contradiction. Additionally, failure to describe precise detail about an event that took place four decades back rather makes witness’ testimony more reliable. An illiterate traumatized woman cannot be expected to narrate the event with full and accurate precision. This is reality.
340. We find substance in core submission extended by the learned Prosecutor Ms. Tureen Afroz. In assessment of testimony of witnesses who stood on dock after a long lapse of time, so many factors are to be kept in mind. In stating what they [P.W.11, P.W.12 and P.W.13] had heard inconsistency or discrepancy may naturally occur, due to lapse of time together with trauma they sustained impacting memory. What happens, then, when the issue of trauma is sandwiched together with that of memory? The ICTR Nyiramasuhuko case considers this issue:
“Many witnesses lived through particularly traumatic events and the Chamber recognises that the emotional and psychological reactions that may be provoked by reliving those events may have impaired the ability of some witnesses to clearly and coherently articulate their stories. Moreover, where a significant period of time has elapsed between the acts charged in the indictments and the trial, it is not always reasonable to expect the witness to recall every detail with precision.”[ The Prosecutor v. Pauline Nyiramasuhuko, ICTR-98-42- T, Judgement, 24 June 2011, para. 179]341. We also acknowledge the circumstances existing at the relevant time when the victims were of illiterate rural women of young age who still belong to the poverty trodden class. This sensible view finds support from the observation made by the ICTY in the case of Kunarac which is as below:“By their very nature, the experiences which the witnesses underwent were traumatic for them at the time, and they cannot reasonably be expected to recall the minutiae of the particular incidents charged, such as the precise sequence, or the exact dates and times, of the events they have described [...] In general, the Trial Chamber has not treated minor discrepancies between the evidence of various witnesses, or between the evidence of a particular witness and a statement previously made by that witness, as discrediting their evidence where that witness has nevertheless recounted the essence of the incident charged in acceptable detail [...] The Trial Chamber has also taken into account the fact that these events took place some eight years before the witnesses gave evidence in determining whether any minor discrepancies should be treated as discrediting their evidence as a whole.[ Prosecutor v. Kunarac , ICTY Trial Chamber IT-96-23-T and IT-96-23/1-T, Judgement, 22 February 2001, para. 564]342. The learned defence counsel drawing attention to several inconsistencies occurred in P.W.2’s testimony has submitted that P.W.2 is an untrustworthy witness and as such he cannot be relied upon, although the prosecution considers him to be a ‘star witness’. The inconsistencies so occurred in his testimony affect the credibility of what he has stated.
343. In view of facts and circumstances of the case in hand, we disagree with the above argument. In the case of Kajelijeli, [Appeals Chamber, ICTR, May 23, 2005, para. 167] it has been held that “Trial Chamber is entitled to rely on any evidence it deems to have probative value and it may accept a witness’s testimony only in part if it considers other parts of his or her evidence not reliable or credible. [See also Musema Appeal Judgement, ICTR Appeal Chamber para. 82].
344. We reiterate that first, alleged inconsistencies do not appear to be significant and related to core and relevant facts. Second, the Tribunal is not obliged to address all the inconsistencies so occurred in witness’ testimony for assessing credibility of witness. Third, mere inconsistencies do not render witness’ entire testimony. Fourth, despite inconsistency on a particular fact the Tribunal may safely act upon the other part of statement made on material facts. We are to see how far the part of P.W.2’s statement relating to material facts. This view finds support from the observation made in the case of Muvunyi, [ICTR Appeals Chamber, August 29, 2008, para. 128] which is as below:
“In addition, the Appeals Chamber recalls that a Trial Chamber has the discretion to rely on uncorroborated, but otherwise credible, witness testimony and that it is not unreasonable for a trier of fact to accept some, but reject other parts of a witness’s testimony.” [See also Muhimana Appeal Judgement, para. 101]345. In view of above careful appraisal of evidence the facts that have been found patently proved are (a) the accused Muhammad Kamaruzzaman, a leader of Al-Badar had significant influence and authority over the fellow Al- Badars of the camp set up at Suren Saha’s house in Sherpur town, (b) the accused by his conscious act of providing ‘advices’ instigated and explicitly and substantially approved the Al-Badars to facilitate launching the attack at the village Sohagpur by accompanying the local Razakars and Pakistani army, (c) more than hundreds of unarmed civilians were murdered resulted from the attack launched, (d) the subsequent explicit behaviour and gesture of the accused that he had shown after bringing dead bodies to the Municipality Park, Sherpur from the crime site unerringly proves his culpability, (e) the principal perpetrators were the Al-Badar members of the camp at Suren Saha’s house, apart from the Pakistani army and local Razakars, (f) the accused Muhammad Kamaruzzaman also accompanied the perpetrators to the crime site, and (g) the accused being the leader of the Al-Badar failed to prevent the commission of the crimes.
346. We are not persuaded with the misconceived argument advanced by the learned prosecutors that the event of mass killing and indiscriminate sexual invasion narrated in charge no.3 falls within the definition of ‘genocide’. Mere multiplicity of victims of murder cannot term the event ‘genocide’. Prosecution could not bring the elements necessary for constituting the offence of ‘genocide’ at the stage of charge matter hearing. The offence of ‘rape’ has been enumerated as an offence of crime against humanity in the Act of 1973. Besides, the learned prosecutor has failed to justify his argument with reference to evidence and relevant jurisprudence. Prosecution could not show the ‘genocidal requirement’ and ‘group requirement’ for bringing the event within the ambit of the offence of ‘genocide’. The charge framed lacks of necessary legal particulars as to constitution of the offence of ‘genocide’. Additionally, without giving the matter of alteration of charge to the notice of the accused, at the stage of judgement there has been no lawful scope to alter the charge, accepting the unfounded argument.
347. In the case in hand, conduct, act, behaviour and the level of influence and authority of the accused together, which have been convincingly proved, are thus qualified to be the constituent of ‘participation’ too to the accomplishment of the crimes as it substantially contributed to, or have had a substantial effect on the perpetration of the crimes for which the accused has been charged with. Not only mass killing, rampant sexual ravishment also took place, in conjunction of the event of massacre, as testified by three victims P.W.11, P.12 and P.W.13.
348. The Tribunal notes that even a distinct offence could have been proved at trial, under the same set of facts narrated in the indictment. Therefore, finding on commission of a distinct offence under the same set of facts narrated in the charge framed is permissible. The charge framed describes the commission of the offence of rape and three sex victims have testified before the Tribunal narrating the trauma they sustained. It is found that the offence of indiscriminate sexual invasion under coercive circumstances, in conjunction of the attack that resulted in causing numerous murders of civilians, was also done to women of the crime village.
349. It is legitimate to draw a conclusion that the accused Muhammad Kamaruzzaman, a significant leader of Al-Badar of greater Mymensingh had acted the role of ‘advisor’ and he was aware of his act and the entire operation as well and thus he was responsible for the entire action causing the appalling mass killing of civilians and rampant sexual ravishment, committed in conjunction of the event, at Sohagpur village. The event of massacre attributed to the accused Muhammad Kamaruzzaman was not the outcome of an individual action but it was the result of the activities of a group of Al-Badars to which he was in leading position and by his conscious acts, instigated the perpetrators to carry out the operation, at its preparatory stage and its actual commission stage too.
350. It has been proved beyond reasonable doubt that the accused Muhammad Kamaruzzaman acted substantially in carrying out the ‘operation’ and his act and conduct, before and after the event, formed part of ‘attack’ which was committed against the unarmed civilian population for causing atrocious criminal act of murder which has been enumerated in the Act of 1973 as crimes against humanity. In conjunction of the horrendous event, shameful act of rampant sexual violence upon the women was also committed and it obviously has diagnosed the event more shocking and graver. Perpetrators of and persons concerned with such shocking and horrendous crimes against humanity are known as the enemies of the mankind. The accused Muhammad Kamaruzzaman, for his substantial act and conduct of providing advices and approval, is equally accountable for the crimes as listed in charge no.3 in the same manner as if it were done by him alone. Thus, he is held responsible for the actual commission of the offence mass killing of hundreds of unarmed civilians constituting the offence of murders as crimes against humanity as enumerated in section 3(2)(a)(h) of the Act of 1973 and thus the accused Muhammad Kamaruzzaman incurs criminal liability under section 4(1)of the Act of 1973.