Since it was not proven that the convicted person committed a violent attack with the aim of illegal possession of foreign property, which threatened the life and health of a person, his act was again classified as secret theft of foreign property.
By the verdict of the Zhalagash District Court of Kyzylorda region dated August 15, 2012: E., earlier: on 20.10.2004 he was sentenced to 3 years in prison under Paragraph "A" of Part 2 of Article 178 of the criminal code, and on 14.04.2006 he was released on parole for 1 year 5 months 13 days. Now,with the confiscation of property by paragraphs "b, g" of Part 2 of Article 179 of the criminal code, he is sentenced to imprisonment for 6 years and 8 months, serving his sentence under the strict regime of a correctional colony. Paragraph "B" of Part 2 of Article 13 of the criminal code recognizes that there is a dangerous repetition of a crime in his act. 6700 tenge was collected from E. in favor of the victim. By the verdict of the court, E. was found guilty of robbery with the use of a substance that he used as a weapon, illegally entering a dwelling with the use of force dangerous to the life and health of a person in order to steal other people's property. By the decision of the Appellate Judicial Board of the Kyzylorda regional court, the verdict was left unchanged. The Cassation Judicial Board of the regional court left the judicial acts unchanged. E.'s defenders, in their appeals to the supervisory Judicial Board of the Supreme Court, said that E. did not commit robbery, the investigation was conducted in the direction of prosecution and the actual circumstances of the case were not established, therefore, the court's decisions were annulled and his actions were re-evaluated from Article 179 of the criminal code with Part 1 of Article 175 of this code and asked for a mitigation of punishment. Having discussed the arguments set out in the petition, listening to the opinion of the prosecutor asking for a re-qualification of the actions of convicted E., replacing them with Part 1 of Article 175 of the Criminal Code, a comprehensive examination of the evidence in the criminal case and supervision by the judicial collegium of convicted E. the court considers the decisions of the court to be subject to change on the basis of the following circumstances.
Since it was not proven that the convicted person committed a violent attack with the aim of illegal possession of foreign property, which threatened the life and health of a person, his act was again classified as secret theft of foreign property.
According to the evidence in the criminal case, the victim D. in the preliminary investigation and in the answers given in court, E. jerked open the outer door of his house with great force, entered, without a word, hit him on the head with a hard object, kicked him in the stomach, and then fled to the field in consciousness, when E. he saw that he was looking at the pockets of his suit, there was E.'s car at the door, he was hiding in the trees behind the house, then after bleeding from the head and dizziness, a neighbor went to J.'s House and said that he was beaten for no reason by E., when he came home with a neighbor, the house was scattered inside, AMIA in his suit pocket, her sneakers bought for 2,000 tenge, 3,000 tenge and glasses "I don't know," he said. Witness Zh. in response, he said that in the morning D. came home with blood on his face and clothes, one of the children was beaten, asked to call an ambulance, when he went home with him, the house was scattered, his ID card was on the ground, D. could not find his wallet, shoes, and the ambulance took him to the hospital. According to the conclusion of the forensic medical examination, it was established that the victim D. had a closed-type injury on the head, a concussion of the 1st degree of the brain, a wound on the left eyelid, bruises on the left side of the chest, minor damage to his health was not life-threatening. In his response to the court, the convicted E. said that in D.'s house, while they were drinking vodka together, there was a conversation about the Lost Phone and agreed with him, when D. came out of the house with a knife from under his bed and rushed to him, defending himself from it, he kicked his brother, D. got his feet on the bed, fell on a kettle on the ground and broke his eyebrows, he stood up and washed his face, D. it was shown that he refused to call an ambulance, and after he ran out of vodka to drink, he brought the vodka that was inside his car, and after the two drank together and reconciled, he went home at about 1 am, did not beat him, did not take his things. During the investigation, during a search of E.'s House, glasses were obtained that were worn against the sun with the inscription "Romantik". He was recognized by the victim from the inscription D., five groove points and indicated that he had been stolen from his home. Supervisory judicial board the victim in the criminal case D. I compared, analyzed and checked the answers given by E. from the investigation to the trial with the evidence in the case, considering that the convicted E. committed a robbery with the use of a substance used as a weapon to take possession of the victim's belongings, using force that threatened his life and health, since the court's conclusion is doubtful, the unquenchable doubt should be resolved in favor of the accused. The use of force when committing robbery at the request of the law is committed for the purpose of illegal possession of other people's property. The guilty person, through the use of force, suppresses the resistance of the victim or forces the transfer of property, that is, his intention is directed to the possession of property. And judging by the circumstances in the case, he and E. and D. came to the floor while drinking vodka, and when E. beat the victim, he ran away from his house. D. later found out that his things were not there, he did not see what E. took from his house. This answer was repeatedly indicated by the victim. Therefore, E. had no intention of using force on the victim and taking possession of his property. Therefore,the supervisory judicial board concluded that the criminal activity of the convicted E. is subject to re-qualification from paragraphs "b, g" of Part 2 of Article 179 of the Criminal Code to Part 1 of Article 175 of the criminal code, and assigned him a sentence of imprisonment for 2 years. According to Part 1 of Article 13 of the criminal code, he recognized the presence of a recidivism in his act. He was sentenced to serve his sentence under the strict regime of a correctional colony. The court left the rest of its decrees unchanged.
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