Conviction cannot stand where homicidal death is unproved and rests on inadmissible evidence.

On 8 January 2014, the deceased, Anisa Mehjebin Azad, aged approximately 9–11 months, died after sustaining a head injury and subarachnoid haemorrhage.

The deceased was the daughter of Abul Kalam Azad and the appellant, Hanufa Nasrin.

The prosecution alleged that the appellant killed the child at the residence of the appellant’s maternal grandparents after receiving a talaqnama from her husband.

An FIR was registered under Sections 302/34 IPC, and the appellant was subsequently charge-sheeted under Section 302 IPC.

The prosecution examined 12 witnesses, including relatives, the informant, the medical officer, the investigating officers and a police officer who allegedly received a telephone call from the appellant.

The appellant denied the incriminating circumstances in her examination under Section 313 CrPC and did not lead defence evidence.

The Sessions Court convicted the appellant and sentenced her to five years’ rigorous imprisonment and a fine of ₹10,000, with a further six months’ rigorous imprisonment in default, under Section 304(II) IPC.

The appellant challenged the conviction and sentence before the Gauhati High Court.

Whether the prosecution proved beyond reasonable doubt that the deceased child’s death was homicidal and that the appellant was responsible for causing it, notwithstanding the absence of conclusive medical evidence regarding the cause of death?

Whether the Trial Court could rely upon police statements recorded under Section 161 CrPC and other material that had not been properly admitted into evidence to sustain the conviction?

Whether the conviction of the appellant under Section 304(II) IPC and the sentence imposed were legally sustainable?

The prosecution was required to establish the ingredients of the charged offence under Section 302 IPC and, in any event, the basis for the conviction under Section 304(II) IPC beyond reasonable doubt.

Medical evidence must reliably establish the nature and cause of death; an opinion based on a chemical examination relating to exhibits not connected with the case cannot be relied upon.

Statements recorded under Section 161 CrPC are not substantive evidence and cannot independently prove the prosecution case.

The court must base its findings only on legally admissible evidence formally brought on record; material not introduced into evidence, including an alleged photocopy of an affidavit, cannot be used to sustain a conviction.

Where the prosecution evidence leaves open a reasonable possibility that the death or injury was accidental, the benefit of doubt must go to the accused.

The post-mortem examination disclosed a 2 cm × 1 cm contusion on the occipital region, bilateral diffuse subarachnoid haemorrhage and a cyst in the third ventricle, but the medical officer did not state that any injury was sufficient to cause death.

Although the medical officer initially relied on a chemical examination report to opine that the child died from organophosphorus poisoning, he admitted that the exhibits referred to in his report—Tox 369(a) to Tox 369(e)—were unrelated to the present case; the Trial Court itself discarded that report.

The alleged insertion of a torn talaqnama into the child’s mouth was not supported by medical evidence indicating suffocation, and the Court held that the injury could not be ruled out as accidental.

The remaining evidence consisted substantially of hearsay accounts, alleged telephonic statements, and statements attributed to witnesses under Section 161 CrPC.

The High Court found that the Trial Court had relied on such police statements as well as an affidavit photocopy that had not been properly introduced into evidence.

Since the Trial Court did not record a clear finding that the death was homicidal, and the legally admissible evidence did not conclusively establish either the cause of death or the appellant’s criminal responsibility, the conviction was held unsustainable.

It held that the prosecution failed to prove beyond reasonable doubt that the child’s death was homicidal or that the appellant caused it, and that the Trial Court improperly relied upon inadmissible or unproved material.

The impugned judgment of conviction dated 20 July 2019 and order of sentence dated 23 July 2019 were set aside.

The appeal was allowed, the appellant was directed to be set at liberty forthwith, and the Trial Court Record was ordered to be returned.