On the basis of contradictory responses of the defendants, the unanalyzed truth of which was not compared and not supported by other evidence, the Appellate Judicial Board unreasonably transferred the actions of the convicted persons from Paragraph "B" of Part 3 of Article 179 of the Criminal Code to Part 3 of Article 327 of this code.
By the verdict of the Karasay District Court of Almaty region dated February 15, 2013: zh., previously not convicted, sentenced to 8 years of imprisonment, serving a sentence in the general regime of a correctional colony with confiscation of property under Paragraph "B" of Part 3 of Article 179 of the Criminal Code of the Republic of Kazakhstan. U., previously not convicted, with confiscation of property under Paragraph "B" of Part 3 of Article 179 of the Criminal Code of the Republic of Kazakhstan, sentenced to imprisonment for 8 years and 6 months, serving a sentence in the general regime of a correctional colony. R., previously not convicted, with confiscation of property under Paragraph "B" of Part 3 of Article 179 of the Criminal Code of the Republic of Kazakhstan, sentenced to imprisonment for 7 years and 6 months, serving a sentence in the general regime of a correctional colony. 1,828,910 tenge of material damage, 2,000,000 tenge of moral damage were collected from the convicts in favor of the victim K. By the verdict of the court J., U. and R. he was found guilty of committing robbery with a group of persons who conspired to commit a large amount of damage to the victim in the amount of 1,418,000 tenge, using objects used as weapons for the purpose of large-scale theft of other people's property, causing serious harm to the life and health of the victim K., dangerous violence.
The unanalyzed truth of the defendants was not compared by the appellate court and was not supported by other evidence
By the decision of the Appellate Judicial Board for criminal cases of the Almaty regional court, the court's verdict was changed. Zh., and U., as well as the criminal acts of R. are transferred and differentiated from Paragraph "B" of Part 3 of Article 179 of the Criminal Code to Part 3 of Article 327 of the criminal code, sentenced to 5 years of imprisonment for U., serving a sentence in the general regime of a correctional colony, 2 years of imprisonment for R., serving a sentence in the general regime of a correctional colony. Zh.was sentenced to 2 years in prison, and on the basis of Article 72 of the Criminal Code, His born daughter S. The execution of the sentence is postponed until the age of 14, and the rest of the sentence is left unchanged. The amount of material damage recovered from convicts has been reduced from 1,828,910 tenge to 1,228,910 tenge. The amount of moral damage was reduced from 2,000,000 tenge to 600,000 tenge, 400,000 tenge were collected from U., 100,000 tenge from each of zh. and R.. By the decision of the Cassation judicial collegium of the Almaty regional court, the resolution of the Appellate Judicial collegium was changed, and the decision to postpone the serving of a sentence of imprisonment for 2 years under Part 3 of Article 327 of the criminal code on the basis of Article 72 of the criminal code was changed, to which Article 63 of the criminal code was applied, and the sentence was conditionally established with a probationary period of 1 year. The criminal activity of R. is transferred and differentiated from Part 3 of Article 327 of the criminal code, Part 5 of Article 28 of the Criminal Code to Part 3 of Article 327 of the Criminal Code, which includes 2 years of imprisonment, on the basis of Article 63 of the Criminal Code, a conditional probationary period of 1 year is established. released from custody.
Control over the behavior of convicted persons R. and ZH. is entrusted to the Karasai District Criminal executive Inspectorate. The rest of the resolution is left unchanged. The Defender B. in defense of the interests of the victim K., Despite the fact that in the application of the Supreme Court to the supervisory judicial board it was established that the convicted persons conspired and committed robbery, the Appeal Board unambiguously investigated the issue of who owes the case between the convicted persons and the victim, the evidence collected was distorted in favor of the defendants, an unjustified conclusion was made, the actions of the persons who committed the robbery were transferred to the category of illegal light crime and imposed too light, unfair punishment, the Appeal Board noted that the conclusion that the victim K. owed the convicted zh. 4,500,00 tenge, that the convicted persons inflicted serious bodily harm to the victim in the process of claiming this money contradicts the evidence in the case. At the same time, despite the fact that the appeal board made unilateral conclusions that did not correspond to the circumstances of the case, incorrectly applied the criminal law, violated the requirements of the CPC and made an unreasonable decision, the court of Cassation also continued to make mistakes and again reduced the imposed punishment, asked to cancel the court's decisions and leave the verdict of the court of first instance in force. The supervisory judicial board discussed the arguments specified in the application, heard the opinion of the prosecutor asking to cancel the decision of the appellate and Cassation judicial boards and leave the verdict of the court of first instance unchanged, thoroughly checked the conclusions in the criminal case, the supervisory judicial board canceled the decision of the appellate and Cassation judicial boards on convicted persons U., zh. and R., and left the verdict of the court of first instance unchanged on the basis of the following circumstances. Judging by the evidence in the criminal case, the victim K. in his uniform responses from the preliminary investigation to the main trial, he indicated that J. owed him 1,600,000 tenge, that he would return this money, and after calling, he went to his container, then J. cut the strap of his bag around his neck with a knife and pulled the bag with 1,400,000 tenge inside, when he resisted, U., standing next to him, hit him with a hammer in the eye, and R. helped them, closing the door of the container. This response of the victim was confirmed by M., A witness who saw the incident.
He noted that on the day of the incident, the convicted R. saw that the victim jerked K. and put him in container No. 42, and when he came from behind, R. grabbed the door of the container and did not let anyone in, because the door of the container was made of glass, he saw in full what was happening inside, J. cut the strap and pulled the bag around K.'s neck with a knife in his hand, and U. clearly saw that he hit K. in the eye with an iron hammer, K. did not owe anyone, but instead noted that all the merchants borrowed money or vegetables from K. A similar answer to M.'s answer was fixed in Witness B. and said that he saw that everything was visible because J.'s container was made of glass, J. had a knife in his hand and U. had a hammer in his hand. The witness A. also responded as The Witness B. pointed out, noting that J. said "it was less for him, it was necessary to kill", that he saw K.'s bag in his hand, that all the vegetable traders borrowed goods from K.. The authenticity of the answers of these witnesses is not in doubt, since other witnesses are fully confirmed by the testimony of K., S. and other objective evidence in the case. According to the protocol on the inspection of the scene and the photographs attached to it, the front surface of container No. 42 corresponding to Zh is made of a mirror, so it is clearly visible to people outside, as well as the arguments of the convicted persons with these photographs that "when the victim fell behind K., the boxes fell on him, and his eyes may have been injured from it" are refuted.
From these photographs, it is established that there are no boxes inside the container in a falling position over the fallen person, but, on the contrary, the fallen person falls over the boxes. The conclusion of the court of Appeal that the victim owed money in the amount of 4,500,000 tenge to the convicted person K. zh., that the victim was seriously injured in the process of claiming this money by the convicted person under his authority is unfounded and refuted by the following evidence. In particular, the appellate court found that the victim K. owed the convicted zh., zh., B., Y., which was requested at the meeting of the first instance and the board. and indicated that it is proved by the answers of S. However, the judicial board did not pay attention to the fact that the answers of these witnesses contradict the testimony of J. and do not coincide with the answers of each of them. In the preliminary investigation, zh. indicated that in his answer dated 13.03.2012 he lent K. 4,500,000 tenge without receiving any receipts, and in his answer dated 13.11.2012 the victim received 4,500,000 tenge from a woman named N. living in Saryagash District of Shymkent region, who contacted the woman by phone, transferred the money to her account and lent this money to the victim K. In his response to the trial, he said that the victim gave the money in the amount of 4,500,000 tenge to K. to his brother M.
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