Wednesday, March 20, 2013

27 Nov 2012: Sayedee defense closing day 7

The defence closing arguments in the case of Sayedee, following on from the previous day, continued with Mizanul Islam continuing with discussion of Charge 14, the Rape of Shefali Ghorami. (The summary of Sayedee defense closing arguments partly draws from defence lawyer's own notes of proceedings)

- Question concerns the cross examination of PW 23, and whether his statement that Delwar Shikder whose father’s name Rosul Shikder commited the offence should be considered by this tribunal or not. You may recall that when we asked the relevant question to PW 23 he was not sick. He took time answering this question. The prosecution objected and finally you allowed to record the answer with question. The prosecution did not call him hostile. So there is no valid point to exclude that part of cross examination of PW 23.
- The chairman commented that the witness was sick, but the defense lawyer said that it was really doubtful whether PW 23 was sick. You may note that though in evidence in chief this witness was in Hospital bed, at the time of cross examination he was looking fresh. After recording of his evidence he went out of the tribunal on foot. PW 28 (IO) admitted in his cross examination that after recording of evidence of PW 23 he was not sent back to the hospital. He also admitted that he did not know anything about PW 23 after his giving evidence before the tribunal. 
- PW 23 admitted in cross examination that his wife did not know any Rajakars. He also said that Rajakars came to his house only once. He also admitted that his wife never went to bazaar. Then how the wife could say that the Rajakars of bazaar raped her. The prosecution failed to establish any link in these facts.

- PW 23 admitted in cross examination that he did not complain about rape of his wife in the last 40 years. He said the Accused’s name after several leading questions from the prosecution. Our objection is recorded in the testimony of PW 23. You may recall that PW 23 was in Prosecution’s custody for 18/20 days. Despite this long stay he did not say the Accused’s name voluntarily.

- PW 23 admitted that his present family is receiving benefits from the government after 2010.

- PW 28(IO) admitted that he came to know about the rape of Shefali Ghorami for the first time from her husband PW 23. PW23 also said that he did not say about the rape of his wife in last 40 years to anyone before be said it to the PW 28. PW 28 said he went to PW 23’s house to collect the information of rape of his wife. So, how PW 28 came to know that PW 23 could give him information about rape of his wife. This proves unholy alliance of PW 28. This is a made up story. This witness was kept in custody of the Investigators for 18/20 days in the name of treatment. During this time they forced him to tell lies against the Accused.
Member Justice Anwarul Haq: the IO may have get this information from other sources.

Islam: but the IO did not say that. He said that he got information of the rape of Shefali Ghorami from the PW 23 only.

He then continued
- the prosecution alleged that Shefali Ghorami was raped in the last part of 1971. PW 23 claimed in the Bengali month Agrahayan (November-December) his wife gave birth of a child due to the rape. How a child can be born in one month of conceiving?

- Prosecution claims that PW 2, 4, 5 and 12 are also supporting charge 14. But none of these PW said anything about this incident.

- Prosecution relied upon Exhibits 36 and 37 (Sketch map of PW 23’s house) in support of this charge. But these exhibits are conflicting with Prosecution Material Exhibit No. XII (video of PW23’s hosue).

- PW 23 did not complain in the last 40 years about rape of his wife to anyone. PW 28 admitted in cross examination that PW 23 did not say anything about Delwar Shikder to him during investigation. So how we can rely on the statements of PW 23.
He then said that the other part of Charge 14 relates with charge 12 and 15. These two charges are same and will be dealt with together later on.

Charge – 9: destruction of PW 14, Abdul Halim Babul’s house
Mizanul Islam then started to discuss charge 9. He said that prosecution relied upon PWs 3, 4, 5, 6, 9 and 12 to support this charge. But none of these PWs mentioned about this event. How can these PWs can be relevant for this charge?
- PW 14 claimed that he gave statement to IO (PW 28) on 27.07.2010 in Pirojpur. You may note that IO started investigation on 21.07.2010 and went to Pirojpur for the first time on 18.08.2010. So it was not possible for IO to record PW 14’s statement on 27.07.2010.

- PW 14 said that no one asked him to give statement to IO. He also admitted that no one told him that IO was recording statements of witnesses. He claimed that he voluntarily went to Parerhat Bazar, Pirojpur in the morning to give statement to IO. The IO said that he did not advertise that he would record statements of PWs. PW 14 is a village doctor and he admitted that Parerhat was not his workplace. He could not explain why he went to Parerhat bazaar on the relevant day to give statement to IO. This shows that this PW was lying. There is a clear likelihood of concoction by PW 23 and 28.

- PW 14 admitted that he did not complain about the incident of his house in 1971 in the last 40 years. He could not explain the reason for such belated complain.

- PW 14 admitted that there are criminal cases filed against him.

- PW 28 claimed that he took pictures of PW 14’s house on 20.08.10 and 06.04.11. But in another place he admitted that he met PW 14 for first time on 20.09.2010. So how he could record PW 14’s statement on 20.09.2010 as claimed by PW 14. How he could take picture of his house on 20.08.2010.

- It is clear that this case is concocted by IO. The PWs acted together to achieve a common unholy goal. The IO was supposed to find out truth. But he acted with malafide intension to falsely implicate the accused.

- From the pictures taken by IO we showed you that he took many pictures even before commencement of the investigation. Many of the pictures were modified after completion of his investigation i.e. submission of investigation report. This proves PW28’s fraudulent investigation.

- PW 28 admitted that PW 14’s mother is alive and he did not take her statement during investigation. Why? She would have been the right person to testify about destruction of the house.

- Prosecution relied upon Exhibit 9, 10 and 11 (news report of Daily Bhorer Kagoj) to support this charge. But this news report does not mention a single word about this incident.

- DW 2 is PW 14’s uncle. He lives in the same house. He clearly said that no such incident took place in the house in 1971. He said that PW 14’s mother was angry for his giving false statement against the Accused. She told DW 2 she was willing to be DW. But due to her old age she could not come and advised DW 2 to go to tell the truth to the Tribunal that the Accused was not involved in any such incident.
Adjournment for lunch

The chairman was absent at the beginning of the afternoon session

Charge – 11. (Looting, destruction and torture in PW1’s house)
The lawyer then moved onto discussing charge number 11.
- Prosecution’s allegation is in para 24 of formal charge. It says about looting of gold and properties of the then value of more than Tk. 300,000/-, cash money Tk. 20,000/-, damage of Tk. 30,000 in 1971 in PW 1’s house. These amounts are unrealistic. Even richest persons in city of those days did not have that amount of wealth at that time. PW 1 admitted that he was a regular person and was not rich.
Chairman: but in our charge framing order we did not mention those amounts.

Islam: but the prosecution is still relying on those figures. In their opening speech they repeated these figures (Para 73 of the opening speech). This proves the falsity of the allegation.
-  prosecution relied on PW 1’s complaint to the Investigation Agency. Our Exhibit F (PW-1’s complain before the Pirojpur court) shows that the statements in the two complaints are not same. You may note that in Charge 11 there are 3 allegations:
1. Torturing PW-1’s elder brother
2. Looking gold and properties of PW 1 and his family
3. Damaging PW 1’s property. 
-    In relation to torturing PW-1’s elder brother, you may note that in the 2009 complaint before Pirojpur court (Ex-F) he did not complain about this incident. Why he did not mention about this incident at that time if it was true? How we can believe this allegation. We have filed an application under Rule 40 for call for record of that case. PW 28 admitted that he did not enquire about any elder brother of PW 1 and their families. They would have been relevant witnesses to prove this charge.

- in relation to Looting of gold and valuable assets, in PW 1’s 2009 complaint (Exhibit-F) the claimed that the looted goods belonged to him. In his complaint to the Investigation Agency (Exhibit-1) in 2010 he claimed that the looted goods may have belonged to his elder brother. In the Tribunal on 7.12.2011 PW 1 in his testimony said that the looted goods belonged to his brother. Which one is correct? Why we should believe this person who gives three separate versions of Charge 11? It is clear that the IO did not conduct proper investigation.
Tribunal: if PW-1’s brother’s property was looted then this may explain mental torture to the elder brother. Why you are saying that PW 1 did not complain about torture of his brother in his 2009 allegation.

Islam: torture may be physical or mental. But PW 1 alleges physical torture of his brother. Where is proof of this physical torture?
 - In relation to damage of PW1’s house, none of the PWs except PW 1 support this. PW1 is not reliable:

- Though the allegation is against several person, why did PW 28 investigatedagainst the Accused only. He admitted in cross examination that no one advised him to stop investigation against the others. He did not look into the primary evidences.

- PW 5 only stated that he heard of looting in PW 1’s house. This is purely hearsay. He did not allege any torture or damage in that house.

- DW 3 is PW 1’s relative and neighbor. He testified that the events of Charge 11 never took place. DW 9 and 16 are also PW 1’s negibour and they also corroborate DW 3.

- Exhibit-U shows that PW1’s date of birth was 20.3.1959 – so he was only 12 years old in 1971. But he claims that he was about 17/18 at that time.

- PW 1 claims to be a secret agent of the freedom fighters in 71. But he did not say a singe incident of his actions as a secret agent.

- He claims that after June 71 he went to Sundarban camp more than 50 times. He admitted that it took about one day to go and another day to come back. He also said that some times he stayed 2/3 days in that camp. The liberation war ended in December 71. It is not realistic for PW 1 to visit Sundarban ff camp for 50 times in such a short time.

- PW 12 is a freedom fighter. He said that one Mahbubur Rahman of Parerhat was secret agent of freedom fighters But PW 1’s name is Mahbubul Alam Hawlader and he is not from Parerhat. So PW1’s claim of being secret agent of ff is not true.

- PW 1 claimed that he came to know about the the incidents in Charge 11 from Khalilur Rahman But Exhibit AL shows that Khalilur Rahman was born in 1972. There was no possibility of him being present in 1971 and informing PW 1 about the incidents
Chairman asked the defence to complete the remaining 13 charges the following day and Razzaq should do his closing arguments the following day.

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