If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.
Illustrations
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob, and he cannot fire without risk of harming young children who are mingled with the mob.Acommits no offence if by so firing he harms any of the children.
Legal Commentary & Landmark Judgments: Section 44
Section 44 establishes the exceptional right of private defence against a deadly assault when there is risk of harm to an innocent person, providing that if in the exercise of private defence against an assault which causes reasonable apprehension of death, the defender is so situated that they cannot effectually exercise that right without risk of harm to an innocent person, their right of private defence extends to the running of that risk.
In communal riot or mob lynching trials where your client fired a licensed firearm into an advancing armed crowd and accidentally injured a bystander, invoke Section 44 BNS: the law explicitly excuses running the risk of harm to innocent persons when facing deadly assault.