As determined above, when the incident began, the defendant got out of his car with a pistol in his hand, approached the deceased and fired several bullets in the air. Later, when the deceased returned to his car, the defendant fired several bullets in the air again. At this point, the deceased got out of his car again and attacked the defendant, who was still holding a gun. According to the video documenting the incident, the deceased tried to take the gun out of the defendant's hands, while exchanging blows, until the two fell to the ground and continued wrestling. During the struggle on the ground, the defendant fired two bullets that hit the deceased, one of which led to his death. The deceased got up and fled back to his car, while the defendant stood on his feet and fired three shots at his back, which did not harm the deceased.
- As detailed above, and the application of the auxiliary tests to the circumstances of the case before us, as determined in the case law, leads to the conclusion that the accuser has not been able to prove with the standard of proof required in criminal cases that the defendant killed the deceased on the basis of a mental element of intent, but rather indifference. As we detailed above, in this case we are dealing with one of the two bullets that penetrated the heart and lungs of the deceased and led to his death. The firing of the two bullets was also carried out during a struggle and while the deceased and the defendant were wrestling and the deceased was trying to pull the defendant's gun from his hand, and the defendant was seen twice during the struggle, moving his hand away from the deceased, who was trying to take the gun, and implicitly, even moving his hand away from the deceased's body. In these circumstances, we cannot determine with the necessary certainty that this was a deliberate shooting at the sensitive place to which it was carried out, and it is not possible to ignore the totality of the circumstances surrounding the two shots, one of which was the one that caused the death of the deceased.
- As explained above, the two shots took place in the course of contact between the defendant and the deceased, which should undoubtedly be called a "struggle" and therefore, it is clear that it is not possible to determine that the location of the shooting was deliberate, so that it can be clearly inferred from it that the defendant's desire to kill the deceased can be clearly inferred. Even the shooting that was fired at the deceased after the deceased had already distanced himself from the defendant at the end of the struggle does not clearly and with the standard of proof required in criminal law, that the defendant had previously directed the death of the deceased during the struggle. It is not possible to learn about the psychological element at the relevant time, even in isolation from the occurrence of the events prior to the struggle and from the totality of the circumstances surrounding the case. The totality shows that, at the very least, doubt remains in this context.
- In these circumstances, where the fatal shooting took place during the struggle between the defendant and the deceased on the floor, when the deceased also tried to take the gun from the defendant's hands, there is doubt as to whether the defendant formulated a decision of intent to cause the death of the deceased.
In this context, it was mentioned in the Yassin case that: