Threat of violence, illegal acquisition, possession and carrying of firearms and ammunition
The qualification of murder under paragraph "k" of part 2 of Article 96 of the Criminal Code is possible when the purpose of concealing another crime is the main motive for depriving the victim of his life, which excludes the possibility of qualifying the same murder for other motives. By the verdict of the specialized interdistrict criminal court of Kostanay region dated January 25, 2011, decided with the participation of jurors, K. was sentenced under part 1 of Article 251 of the Criminal Code to 3 years in prison, under part 2 of Article 327 of the Criminal Code to 3 years in prison, under paragraph "k" of part 2 of Article 96 of the Criminal Code to 11 years deprivation of liberty. Based on part 4 of Article 58 of the Criminal Code, 13 years of imprisonment were imposed to be served in a high-security penal colony by partial addition of punishments. In accordance with paragraph "d" of part 1 of Article 88 of the Criminal Code, compulsory medical measures were prescribed in the form of treatment for alcoholism. X's civil suit. partially satisfied. It was decided to recover from the convicted K. in favor of H. for compensation of material damage, 800,000 tenge and for compensation of moral damage, 600,000 tenge, state duty in the amount of 8,756 tenge, procedural costs in the amount of 15,600 tenge.
A jury trial found K. guilty of illegally acquiring, storing and carrying firearms and ammunition, as well as unauthorized, contrary to the established legislation, exercise of his alleged right to receive wages from the accountant of LLP "M" T., disputed by this LLP, which caused significant harm to the rights of T. with the threat of violence against her and the premeditated murder of G. in order to conceal the crime he committed. The verdict was upheld by the decision of the Cassation judicial Board of the Kostanay Regional Court dated April 6, 2011. The words "two persons" are excluded from the descriptive and motivational part of the sentence. The Supervisory Judicial Board for Criminal Cases of the Supreme Court changed the verdict of the first instance, decided with the participation of jurors, and the decision of the cassation judicial board in respect of convicted K.: - reclassifying the actions of convicted K. from paragraph "k" of part 2 of Article 96 of the Criminal Code to part 1 of Article 96 of the Criminal Code, under which she imposed a sentence of 9 (nine) years in prison, the penalty under part 1 of Article 251 of the Criminal Code was 3 years in prison, and under part 2 of Article 327 of the Criminal Code she left 3 years in prison unchanged. In accordance with part 4 of Article 58 of the Criminal Code, by partially adding up the punishments, she finally sentenced 11 (eleven) years of imprisonment to be served in a high-security penal colony.; - by excluding from the charges of part 1 of Article 251 of the Criminal Code the qualifying feature "illegal acquisition of firearms" on the following grounds. It follows from the case file that K. worked as a security guard at M LLP, from where he was fired for appearing drunk.
Considering that his salary had not been paid when he was dismissed, on August 16, 2010, at about 10 a.m., K. came to the office of M LLP armed with a firearm – a sawn-off 16-caliber double-barreled hunting rifle of the TOZ brand, which he illegally acquired in the period from August 10 to August 12, 2010 in Kostanay, stored, carried and loaded with ammunition – two rounds. Having gone to the accountant's office, T., K., threatening with a gun pointed in her direction, demanded to give him a salary. T., rushing out into the corridor, ran into the office rented by the employees of LLP "A", where she asked to call the police. K. went out the door of the office and began shouting for her to come back. The deputy director of LLP O., seeing K. demanding wages in T.'s office, informed the director of LLP "M" G. about this conflict, who went into T.'s office and, trying to stop K.'s criminal actions, grabbed a sawed-off shotgun with his hands. However, K., having hostile relations with G. Due to his dismissal from work and non-payment of wages, in his opinion, realizing the intent to cause death, by pulling the trigger, he fired a shotgun at close range into the area of G.'s vital organs, as a result of which G. died. As follows from the conclusion of the forensic medical expert, G. suffered a blind gunshot wound on the upper third right thigh with damage to the main arteries and veins, resulting in acute blood loss, which was the immediate cause of death. The conclusion of the forensic ballistics examination established that the sawn-off shotgun was in technically sound condition, the parts and mechanisms of the sawn-off shotgun are located on the factory-designed guns of this model. Expert Zh., confirming the conclusions of this expert opinion, clarified that firing shots from this rifle with cocked triggers without pulling the trigger, that is, spontaneously impossible. These circumstances were established on the basis of a set of evidence analyzed, compared and verified by the court. The court's conclusions regarding K.'s conviction according to part 1 of Article 251 and part 2 of Article 327 of the Criminal Code, they are justified.
However, with regard to the premeditated murder committed by K., the court, not having sufficiently investigated the volitional process of the convict's criminal behavior, unreasonably recognized the purpose of his actions as the concealment of another crime. Thus, the court's verdict recognized that, having failed to get what he wanted due to T.'s departure from the office, trying to conceal this crime, during the struggle with G., who ran to T.'s screams, with the aim of suddenly intending to kill him, K. fired shots at G., causing his death. However, the purpose of concealing a previously committed crime is a constructive element of the subjective side, which characterizes a qualified type of premeditated murder and has the value of a mandatory feature, since the goal is the future result, which the perpetrator strives to achieve at the moment of volition when committing a crime. When considering a case, the court is obliged to clarify the motives and objectives of the criminal acts imputed to the defendant, since the motive and purpose of the crime relate to the circumstances to be proved. Meanwhile, the court's conclusions in this part are not based on the case file and are not supported by evidence. As follows from the case file, K. committed an unlawful act against G. at his former place of work, in the LLP building during business hours, that is, when there were employees who witnessed the crime he committed. So, the victim T. testified that K., having entered her office, said that he had come to collect his salary, then, pulling a firearm out of his bag and pointing it in her direction, demanded his salary, although he had been paid upon dismissal. She ran out of her office and ran into the next office.
Looking out into the corridor, she saw K. standing at the door of the office, where Director G. had approached. A minute later, she heard a shot, and a second later, a second shot. According to the testimony of witness S., T. ran into their office and asked them to close the door, as a former LLP employee came with a gun and was in her office. She went to the door and saw T. K. standing on the threshold of the office with a gun in his left hand. At that moment, G. came out of his office, who began telling K. what he was doing and tried to grab the gun from him, pushing him into the office. Then she heard a shot, and less than a minute apart, another shot and a man's voice shouting for an ambulance. Witness D. testified that, having heard the noise, she went out into the corridor and saw K.'s former security guard in accountant T.'s office demanding money, which she informed the director of LLP G., who went to the accountant's office, and after 2-3 minutes she heard a shot and the director's voice about calling an ambulance and the police. After that, I heard another shot. From the testimony of witness L., it can be seen that when she was standing in the reception area of the director of LLP G., D. came in, who said that K. It requires something from the accountant. After that, G. went to the office of accountant T. The threat of violence, illegal acquisition, possession and carrying of firearms and ammunition, She followed and saw K., who was holding G.'s hand with his right hand, so they reached the middle of the office. G. shouted for the police to be called. At this time, K. raised his left hand with a gun and shot G. in the groin area from the right side, and he fell to the floor. When she ran downstairs, she heard a second shot. It follows from the testimony of witness Sh. that G., having learned from D.'s words about the conflict in the accountant's office between T. and K. went to the accountant's office, where he began to tell K. what he was doing. Then she heard a gunshot and G.'s voice, which screamed: "What are you doing, call the police!" followed by another shot. It follows from witness V.'s testimony that a minute after G. went to Accountant T.'s office, she heard a gunshot and his screams: "Call the police and an ambulance!".
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