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Dinesh Kumar shows a picture of his son Gaurov outside court in Toronto on Jan 20, 2011, after being acquitted of causing the boy's death in 1992. (Chris Young/Chris Young/The Canadian Press)
Dinesh Kumar shows a picture of his son Gaurov outside court in Toronto on Jan 20, 2011, after being acquitted of causing the boy's death in 1992. (Chris Young/Chris Young/The Canadian Press)

Man acquitted in baby son's death Add to ...

Tears streamed down Dinesh Kumar's face Thursday as he walked out of court finally free of the baby-killer label that has haunted him for 19 years.

Mr. Kumar, 44, has endured the finger pointing and stony silence from members of his community since he was convicted in 1992 of criminal negligence causing the death of his five-week-old son Gaurov.

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He was charged with second-degree murder but accepted the lesser plea under a multitude of pressures, including threat of deportation to India and separation from his wife and older son, he said.

One of the biggest factors in pleading guilty was the prospect of testimony from now-disgraced pathologist Dr. Charles Smith, who concluded Gaurov died of shaken baby syndrome, Mr. Kumar's lawyer said. Mr. Kumar was told Dr. Smith was like "a God" in court and it would be nearly impossible to challenge Dr. Smith's opinion.

So Mr. Kumar took the plea and was sentenced to 90 days served on weekends. Mr. Kumar said in the almost 19 years since then, he has thought about Gaurov every day.

"He's always in my heart," Mr. Kumar said outside court, holding up a picture he still carries in his wallet.

"I never forget him. He [will]always stay with me until I die. I miss him lots."

The Court of Appeal for Ontario acquitted Mr. Kumar on Thursday, minutes after hearing both the Crown and defence call for the conviction to be set aside.

"We appreciate the terrible toll this case has taken on you and your family," Justice Marc Rosenberg said on behalf of the panel of judges.

The conviction is unreasonable, in light of new medical evidence, he said. Opinions from various medical experts filed with the court found Gaurov may have died of natural causes.

Mr. Kumar said to clear his name in his community he would post the decision in his temple, where for so many years people have avoided him and talked behind his back.

"I can't explain what kind of life I had before and now it's totally different - like a big burden out of my shoulders," Mr. Kumar said, tears running down his face.

A judicial inquiry into Dr. Smith's work found the pathologist's testimony was responsible, in part, for several people being wrongfully convicted of killing children and being sentenced to prison.

Lawyer James Lockyer, who has represented many people who were successful in appealing those decisions, said he took the case because Mr. Kumar did nothing wrong.

"I had no doubt in my own mind that he was innocent and I still don't," Mr. Lockyer said outside court.

"I thought it was a terrible miscarriage of justice."

But unlike in some other Charles Smith-related cases, the court did not use the words "miscarriage of justice" or "wrongfully convicted."

In Mr. Kumar's case, Dr. Smith's opinion was valid at the time and based on current medical knowledge, both the Crown and defence said.

"I find it hard to be too critical of [Dr. Smith]on this one, just because there were lots of pathologists who would have said the same thing back in 1992," Mr. Lockyer said.

The court will issue written reasons for its decision at a later date.

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