In the criminal case of intentional infliction of serious harm to health

September 16, 2022 No. 5198-22-001-36/22 case in the specialized Inter-District Court for criminal cases of the Turkestan region: presiding Judge D. Madaliyev,Secretary of the court session zh.Naiman, state prosecutor ‑ Prosecutor A. Bekhozhaev, victim K. E, representative of the victim T. E, defendant A. K., defense lawyers R. K. , B. zh , B. B. considered the criminal case at an open court session with the participation of, according to him:

K A N, born on 27.11.1991 in Maktaaral District of Turkestan region, Kazakh by nationality, citizen of the Republic of Kazakhstan, higher education, married, with a dependent minor child, unemployed, previously absent from court, Turkestan region, Maktaaral district, Atakent village, T. ryskuova Street, house No. 2.

Part 3 of Article 24 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code), submitted to the court on charges of committing a criminal offense provided for in Part 1 of Article 99.

In the afternoon of January 24, 2022, in the center of Atakent, Maktaaral district, Turkestan region, the defendant A. K. and the victim K. E. spoke, the latter invited A. K. to a fight. A. K., in turn, refused to fight him because he knew that K. ETin was a master of sports in wrestling. K. E. did not stop at this, followed A. K. to the police building located in the center of Atakent, Maktaaral district, and again called A. K. to fight. As a result, A. K. and K. E agreed to meet for reconciliation in the park of the Atakent Center.                

On the same day, around 19.30, A. K. and K. E, together with their friends, came to the park of the Atakent center and met each other, unable to reconcile. During the eregis, K. E. ran away from the park with profanity.

A. K., angry at the words of K. meat, in order to deliberately cause serious harm to health, followed K. meat in a car in front of the store "Saken bar" on Bekzhanov street, with a knife in his hand, he damaged two digits of K. Meat, his right wrist, both shoulders, chest, causing serious harm to his health.          

In court, the defendant A. K. partially admitted the charges: on the day of the incident, K. Yepen spoke out; K. E followed him to the police building and repeatedly called for a fight; K. E refused to fight with him because he was a wrestling master sport; K. E took a knife after insulting his mother in the park and chased after her; when he reached the store "Saken bar", K. E stumbled and fell to the ground; at the same time, he hit K. meat in the leg and side of the arm with a knife in his hand;. that the meat had no purpose to kill; it showed that it was possible to immediately damage the vital organ if there was an intention to kill it (file 19072022153949, 1-hour).      

The criminal act of the defendant (except for his answer) is proved in court by the answers of the requested victim and witnesses.

In particular, in court, the victim K. E. said: A. K. went to the police building and agreed to meet in the park; A. K.'s brother was beaten by a person named "Joseph" (K. meat) in the park; then A. K. said that he was going to "kill" and stab him with a knife; however, friends standing next to A. K. caught him; A. K ran away from the park, fearing that he would actually kill him; A. K chased him in his car and stabbed him in front of the store "Saken bar"; at this moment A. K. K's brother - "Joseph" ran and kicked him (K. meat) in the head and body; he lost consciousness from the blows and showed that he did not know what happened next (file 19072022153949, 19-minute).                  

A. Sayfidinov, a witness in court: on the day of the incident, A. K. and K. E spoke; K. E repeatedly called A. K. to fight; after A. K. was taken away by police officers, K. E went after him and called him to fight again; after A. K. left the police building, he and K. E met in the park; K. E called A. K. to fight in the park; he fell between them and said "sheep"; at the same time K. E left the park and he said the same words; A. K. heard the same words and chased after K. meat in his car; he (Witness A. Saifidinov) went after them with the balls; When the "saken bar" reached the store, it was shown that K. meat was lying on the ground with blood; next to him was a knife A. K.; K. meat was put in the car and taken to the pharmacy (file 0408202295859, 4 minutes).

In court, the witness N. B : on the day of the incident, K. E came to his house and said: ‑ "Let's go to the park"; in the park he (witness N. B), K. E and an acquaintance called "A K"; in the park there were A. K and his acquaintances; A. K and K. E came to the speech; at the same time K. E ran out of the park, shouting profanity towards A. K.; A. K followed him in his car; went after them with the balls; when the "Saken bar" reached the store, K. K. There was blood on the ground; there was A. K. standing next to him; no one was holding him; the knife was lying on the ground; K. showed that the meat was put in the car and taken to the pharmacy (file 0408202295859, 30-minute).

In court, The Witness B. A. B: on the day of the incident, A. K. and K. E came to the floor; K. E repeatedly called A. K. to fight; after A. K. was taken away by police officers, K. E went after him and called him to fight again; the two met in the park, hoping to make friends; another man in the park; K. E called A. K. to fight; at the same time K. E A. K. said profanity and left the park; he was followed; two of them fought near the store "saken bar"; went after them with honey; A. K. was stabbed in the flesh; K. E was lying on the ground near the store; A. K. pointed out that he was watching next to her; K. put the meat in the car and took it to the pharmacy (file 0408202295859, 58-minute).

That is, with the answers of the above persons, it is proved that the defendant A. K. inflicted a bodily injury with a knife to the victim K. eke.              

According to the protocol "on the inspection of the scene", compiled on 24.01.2021, the crime occurred in the Turkestan region, Maktaaral district, Atakent Center, Bekzhanov

"Saken bar", located along the street, is located in front of the store (Package 1, Page 8).

In addition, it is proved by the following forensic results that the defendant A. K. inflicted serious bodily injuries on the victim K. eke.

According to the conclusion of the forensic medical examination dated 18.04.2022, the victim was found to have injuries of the right side of the rib cage of K. meat that did not enter the abdominal cavity, multiple stab wounds of both shoulders, right wrist, and two thighs. It is assessed as causing serious damage to Health (Package 4, p.20).

According to the conclusion of the forensic biological examination dated 04.03.2022, blood stains were found at the scene, from the knife, from the victim's clothes. These blood stains were caused by the victim K. meat (Package 2, P.38).

The court, having comprehensively analyzed and evaluated the above evidence, considers that with these evidence, the criminal activity of the defendant is fully established and proven.  

However, the court, the investigative body, believes that the criminal behavior of the defendant was not properly assessed.

In accordance with paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated May 11, 2007 "on the qualification of certain criminal offenses against the life and health of a person" n 1, an attempted murder of a person is considered subjectively only direct, direct acts of intent.

The Investigating Authority stated in the indictment: "the victim of A. K. K. was deliberately stabbed with a knife several times in the body and ribs with the aim of premeditated murder, causing bodily harm."  

However, the investigative body did not indicate that A. K. committed an attempt to kill the victim with a direct, direct intent.      

In accordance with paragraph 4 of the said normative resolution, if the criminal offense was interrupted before its completion, it is necessary to find out why the perpetrator stopped his actions, whether it depended on his will, whether he had a real opportunity to continue the criminal offense, what circumstances prevented him.

The investigative body stated in the indictment: "as a result of the actions of other persons who intervened and prohibited this criminal act of A. K. and timely medical assistance to the victim, the victim survived the death penalty."

However, the investigative body did not specify which of the other persons intervened and prohibited the criminal activity of A. K.

None of the witnesses questioned in this case indicated that A. K. interfered in his criminal activities.

The victim K. meat himself: - "A. K. chased me in his car and stabbed me in front of the store" Saken bar". At this moment, A. K.'s brother - "Joseph" - ran up and kicked me in the head and body. I lost consciousness from the blows."    

During the pre-trial investigation, the witness showed that : A. K. the victim stabbed K. meat in the shoulder, then kicked him on the leg; at the same time, A. K.'s brother "Joseph" came and shouted at K. eke; then several points came and separated the "Joseph" standing on K. meat (Package 2, p.9).

The answers of the victim K. ETin, the witness S. A. are also supported by the recording of a video camera standing in the courtyard of the store" Saken bar " (attached as evidence to the case).

In the course of the study of this video recording, it was found that: the second person followed the first person; the first person stumbled and fell to the ground; the second person hit the first person lying on the ground; the first person grabbed the second person and knocked him to the ground; the second person stood on his feet; at this moment, the third person ran up and began to beat the first person; the second person stood next to them.

During the investigation, the above video recording was studied by a forensic specialist and drawn up a protocol (Package 2, page 64). In his conclusion, the criminologist did not indicate that other persons intervened and prohibited A. K.'s actions.

That is, it was not established exactly what circumstances stopped the actions of the defendant A. K.

In addition, on 14.03.2022, the pre-trial investigation body issued a resolution "on the qualification of the suspect's actions" against a person named "Zhusup", which stated in this resolution: "zh.K.saw that A. K. and K. E were separated in front of the cafe "Saken bar"... K. kicked the meat on the head and inflicted a bodily injury with a cutting object..."what's the matter?"  

That is, the pre-trial investigation body gave two different conclusions to the actions of the defendant A. K. in one criminal case.

In addition, it is determined by the following data that the defendant A. K. did not have the purpose of intentional murder of the victim K. meat.

When the victim of A. K. was hit with a knife, the first blow was hit in the leg, the second blow was hit in the arm, the third blow was hit in the right rib cage, however, according to the conclusion of the forensic medical examination, the third blow is an injury that did not enter the abdominal cavity.  

The defendant A. K. did not say the words "I will kill" in the course of the victim K. Yepen eregis. This fact is also supported by the answers of witnesses. At the same time, nothing is written about this in the indictment.

The investigative body stated in the indictment: "in the park, A. K. took a knife, armed with it specifically, and the victim tried to stab K. K. several times. However, other people gathered in the park intervened and detained A. K.."

These arguments of the investigative body were also not supported by the answers of witnesses. None of the witnesses questioned (both during the investigation and at the trial) indicated that "A. K. took a knife in the park, and the victim tried to stab K. meat several times."          Paragraph 12 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 n 4 "on some issues of evaluating evidence in criminal cases" states that a court verdict cannot be recognized as legal if it is made only on the basis of the testimony of the defendant and the victim, not analyzed, not compared with the truth and not confirmed by other evidence: testimony of witnesses, minutes of procedural actions, expert conclusions, physical evidence and other documents.

The investigative body of the defendant A. kka filed a charge only on the response of the victim. However, as it turned out in the case materials, the victim repeatedly changed the answer during the pre-trial investigation.  

And the defendant A. K. during the pre-trial investigation from beginning to end stated that "I did not intend to kill the victim K. meat, I just waved a knife at his leg and hand in order to intimidate him" (Package 1, p.94; package 3, p.168; Package 4, p. 1; responses recorded on DVDs are attached to the case).            

As a result, the court, assessing the established circumstances, re-classifies the criminal activity of A. K. from Part 3 of Article 24, Part 1 of Article 99 to Part 1 of Article 106 of the criminal code. After all, he deliberately caused serious harm to the health of the victim.  

According to the conclusion of the forensic Narcological examination, the defendant A. K. does not deprive himself with drug addiction, alcoholism, does not require involuntary treatment. According to the conclusion of the forensic psychiatric examination, he does not suffer from chronic mental illness, dementia or other mental illnesses and does not require involuntary treatment due to his mental state.

The court, when imposing a punishment on the defendant, takes into account the criminal nature and degree of public danger committed by him, his personality, as well as his behavior before and after the commission of the crime, as mitigating and aggravating circumstances of responsibility and punishment, as well as the impact of the imposed punishment on his correction and the living conditions of the family or his dependents.

The court recognizes as mitigating circumstances of the defendant A. K.-confession of guilt, sincere repentance, the presence of a dependent child, unlawful and immoral behavior of the victim, which provoked a criminal offense. Aggravating circumstances were not established.

In accordance with paragraph 2 of Article 98-2 of the criminal code, A. Ktan is charged to the Victim Compensation Fund of the Republic of Kazakhstan in the amount of 20 monthly calculation indices.

According to the requirements of Article 178 of the CPC, the court, collecting procedural costs from the defendant in favor of the state.

The fate of the physical evidence registered in the above-mentioned case is decided in accordance with Article 118 of the CPC.

In this criminal case, the victim K. E. filed a civil claim against the defendant A. K. K. and asked to recover 470,899 tenge as material damage and 10 million tenge as moral damage. The court, in accordance with paragraph 1 of Part 1 of Article 170 of the CPC, partially satisfies the civil claim. That is, since the material part of the civil claim is fully substantiated by medical documents and certificates of institutions, the court considers it necessary to recover 470,899 tenge in favor of the civil plaintiff A. Ktan.

And the recovery of the moral part of the civil claim is dismissed by the court. After all, during the judicial investigation, it was found that the defendant fully compensated for moral damage.

This fact is determined by the following evidence.

Additional witness in court B. Shanpiyev (native uncle of the victim K. meat): in March 2022, he, K. meat's father - T. E., A. K.'s brother ‑ zh.K.ushukua B. Shanpiyev met at the workplace; there zh.K. apologized,

K. ETin's father - T. eke-indicated that he gave 5 million tenge as a loss (file 5198-22-00-1/36_2022-09-07, 41-minute).      

Additional witness in court zh.K.: on March 19, 2022, he, K. meat's father-T. E, K. meat's native uncle - B. Shanpiyev, met at the workplace of the latter; there K. meat's father - T. E. said that he would apologize and reimburse the expenses; T. E. said the amount of 4 million 600 thousand tenge; at the same time he called home and ordered his driver M. Oshurov to bring 5 million tenge from home; after M. O. B brought money, zh.K 5 million it was shown that the tenge was given to the father of K. ETin - T. eke in the presence of B. SHN (file 5198-22-00-1/36_2022-09-07, 30 - minute).      

Additional witness M. O B gave a meaningful answer (file 5198-22-00-1/36_2022-09-07, 30 minutes).      

Therefore, it is proved that the victim K. E and his father - T. ETin received 5 million tenge from the relatives of the defendant A. K. as moral damage.    

In addition, between the main court proceedings, namely on August 8, 2022, the victim K. E. and his father T. E. wrote an apology through a notary, indicating in the statement:-"the defendant A. K. koyyar did not have a dispute, we reached a compromise with him, so we gave forgiveness, provided full moral damage," and it was found that A. K.'s brother - zh.Ktan received 6 million tenge.

In court, the father of the victim K. meat-T. E., not satisfied with the amount collected in the amount of 11 million tenge, demanded an additional 4 million tenge from the relatives of the defendant A. K. and indicated that he would not give the defendant a pardon in case of non-payment. However, the court showed that A. K.'s brother ‑ zh.K.: gave all the money, there was no way to earn extra money.

Then, in court, that is, on September 14, 2022, the father of the victim K. meat - T. E. changed the civil claim and stated that he asked to recover 30 million tenge as moral damage, and in case of non-payment he would not give the defendant a pardon.            

However, due to the fact that 11 million tenge of moral damage was collected in favor of the victim by the defendant A. K., the court considers this amount sufficient. For this reason,the court dismisses the recovery of the moral part of the civil claim.  

At the same time, the court considers that the defendant A. K. has been in custody for more than 7 months, gave him 11 million tenge to obtain forgiveness from the victim, has a dependent child, and also, taking into account the actions of the victim, there is an opportunity to impose a punishment that does not deprive A. K. of freedom.

The term of serving the sentence of A. K. is appointed in accordance with paragraph 2 of part 3-1 of Article 62 of the criminal code.    

The CPC 118, 170, 178, 387-393, 395-398, 402-the court, guided by articles

SENTENCED:

K Abilhair N to be found guilty by Part 1 of Article 106 of the Criminal Code of the Republic of Kazakhstan and impose a sentence of restriction of freedom for a period of 5 (five) years and 4 (four) months.

A. K.'s preventive measure" detention under guard " should be canceled and he should be released from custody as soon as possible.

In accordance with Article 44 of the Criminal Code, A. kka should be involved in forced labor for the prescribed period: one hundred hours annually. Organize forced labor by local executive bodies in public places and do not exceed four hours a day. Establish probation control, without notifying the authorized state body that monitors behavior, not to change the place of permanent residence, not to visit certain places that raise the mood, perform other duties that contribute to its correction and Prevention of the commission of new criminal offenses.

Control over the behavior of A. K. is entrusted to the Criminal executive Inspectorate at the place of residence. After the entry into force of the sentence, it is obliged to appear to the Probation Service for registration within ten days. Explain to him that in case of malicious evasion of serving a restriction of liberty, his outstanding term shall be replaced by imprisonment for one day of restriction of Liberty at the rate of one day of imprisonment.

In accordance with paragraph 2 of part 3-1 of Article 62 of the Criminal Code, the period of stay of A. K. in custody for 7 months and 17 days shall be replaced by a period of 1 (one) year 3 (three) months 4 (four) days (7 months and 17 days x 2), which shall be considered  

To collect procedural costs in the criminal case of A. Ktan ‑ 100,408 tenge in favor of the state.  

In accordance with paragraph 4 of Article 98-2 of the Criminal Code, A. Ktan 20 monthly calculation index-61 260 tenge to be collected to the Victim Compensation Fund of the Republic of Kazakhstan and transferred to the account of the RSU of the Treasury Committee of the Ministry of Finance of the Republic of Kazakhstan, BIC KKMFKZ2A, IIC KZ24070105KSN0000000, KBC 204303.

Recognized as physical evidence: torn tights, outerwear (jacket), T-shirt, sweater, 2 pieces of socks, 1 piece of knife-to be destroyed; video camera block ‑ to be considered returned to the owner; investigative actions recorded on DVDs ‑ to be stored together with the case.

To partially satisfy the civil claim of the Civil Plaintiff.To collect 470,899 tenge as material damage in favor of the civil defendant A. Ktan civil plaintiff K. meat, 4,708 tenge 99 tiyn as a state duty.  

For the voluntary execution of the civil claim part of the sentence, a period of one month should be given to the CPA. During this period, in case of voluntary non-fulfillment of a civil claim, the civil claim part of the sentence should be forcibly executed.

The parties have the right, within 15 days from the date of publication of the convicted sentence, to submit a letter of Appeal, appeal to the Judicial Board of the Turkestan regional court for criminal cases through a specialized Inter-District Court for criminal cases.

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