Monday, October 7, 2013

Molla judgement excerpt about Jallad Khana statements

This posting is linked to this

This is the excerpt from the tribunal's judgement dealing with the Jallad Khana statements (including that of Momena Begum). The whole judgment can be accessed here.

On 17 September 2013, the appellate division imposed the death sentence on Molla in relation to the offence which Momena gave evidence.

This statement is linked to the annotated version of an article (originally published in New Age) which can be found here.
(ii) Application praying direction to Mirpur Zallad Khana for production of statement of four witnesses for showing inconsistencies with that made before the Tribunal (filed at the stage of summing up of case by the defence)389. After conclusion of trial and at the stage of summing up case defence filed an application together with ‘photographed copy’ of some documents allegedly the statement of P.W.3 Momena Begum, P.W.4 Kazi Rosy , P.W.5 Khandoker Abu Taleb which are claimed to have obtained from the museum of Mirpur Jallad Khana praying direction to the museum authority for production of the originals archived therein for showing contradiction and inconsistencies between the earlier narration and the testimony made in court in relation to fact described in charges. Admittedly, the same have been procured pursuant to a report published in a local daily ‘The Daily Naya Diganta’ on 13 December 2012. 
390. The learned defence counsel has submitted that the above statement needs to be considered for assessing credibility of testimony of the P.W.s relating to the martial fact. Because narration made therein earlier is inconsistent with what has been testified before the Tribunal. The Tribunal is authorized to make comparison of sworn testimony of witnesses with their earlier statement and after such comparison it would reveal that the witnesses have made untrue version relating to pertinent fact. 
391. First, the ‘photographed copy’ of alleged statement submitted before this Tribunal is not authenticated. Defence failed to satisfy how it obtained the same and when. Second, ‘photographed copy of statement’ does not form part of documents submitted by the defence under section 9(5) of the Act and thus the same cannot be taken into account. Third, the alleged statements were not made under solemn declaration and were not taken in course of any judicial proceedings. In the circumstances, the value attached to the said statements is, in our view, considerably less than direct sworn testimony before the Tribunal, the truth of which has been subjected to the test of cross-examination. Without going through the test said statement cannot be taken into consideration for determining inconsistencies of statement of witnesses with their earlier statement. 
392. We are to consider whether a witness testified to a fact here at trial that the witness omitted to state, at a prior time, when it would have been reasonable and logical for the witness to have stated the fact. In determining whether it would have been reasonable and logical for the witness to have stated the omitted fact, we may consider whether the witness's attention was called to the matter and whether the witness was specifically asked about it. The contents of a prior alleged inconsistent statement are not proof of what happened. 
393. Besides, Inaccuracies or inconsistencies between the content of testimony made under solemn declaration to the Tribunal and their earlier statement made to any person, non-judicial body or organisation alone is not a ground for believing that the witnesses have given false testimony. Additionally, false testimony requires the necessary mens rea and not a mere wrongful statement. We do not find any indication that the witnesses with mens rea have deposed before the Tribunal by making exaggeration. 
394. For the reasons above, the Tribunal refrains from taking the account made to a non-judicial body into consideration for the purpose of determining credibility of testimony of witnesses made before the tribunal.

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