An assault may be defined as the unlawful laying of hands on another or attempts to do a corporeal hurt to another, coupled with the present ability and intention to the act.
According to Sir Frederick Pollock-
“The essence of the wrong of assault is putting a man in present fear of violence, so that any act fitted to have that affect on a reasonable man may be an assault.”
Stephens vs. Myers, 1830 4 C. & p.349
Actual contact is not necessary in an assault though it is in a battery. But it is not every threat, when there is no actual personal violence that constitutes an assault; there must, in all cases, be the means of carrying the threat into effect.
Mere words do not amount to assault. But the word which the person threating uses at the time may make them amount them amount to an assault, or on the other hand, may prevent them from doing so.
It is the causing of unreasonable apprehension of body injury and damage in the mind of another person and usually a prelude to a battery. It can be given effect in a way that would make certain actions and indications as suggestive of assault by another. It can be both direct and indirect. It can be carried out by the person himself or through a third person.
Here, an important factor of foresee ability causing apprehension is required as it is essential that one is able to conceive after seeing something that it is causing unreasonable fear. Section 351 of Indian Penal Code defines assault.
Ingredients of assault include:
In order to succeed in an action for assault, the plaintiff must prove:
- That there was some gesture or preparation which constituted a threat or force
- That the gesture or preparation was such as to cause a reasonable apprehension of force.
- That there was a prepare ostensible ability on the defendant’s part to carry out a threat into execution immediately. This if a person brandishes a sword at such a distance that it would not be possible to hurt anyone, it would not be an assault.
A man directing a gun and about to trigger it, behind a person is not foreseeable to the person. This can’t be said to be an assault as there is no apprehension in the mind of that person that somebody is doing such an act which would instill fear in him.
Battery consists of touching another person hostilely or against his will directly or indirectly, however, slightly. Direct force can be like slapping a person whereas indirect force is like setting a dog behind a person or spitting on a person. Battery is the use of force on the person of another without lawful justification. Battery corresponds to ‘use of criminal force’ according to Section 350 of the Indian Penal Code. What is necessary is that the wrongful act must involve physical contact.
Essentials of battery include:
- Direct or indirect physical contact without lawful justification
- Use of force
- It must be voluntary
Accidental touch or push in the market is not wrongful and does not constitute battery.
Defences open in an action for assault and battery–
- Consent of Plaintiff: When plaintiff consented with the defendant on the specific act then defendant can’t be said to be trespassing if there is a mutual understanding between the parties for the act.
- Contributory negligence: When there is a negligence of plaintiff included in the act, then defendant’s liability can be mitigated to the extent and compromise can be arrived at or liability can be divided.
- Self-defence: A person, to protect himself from an unruly element or any other such person or incidents, can trespass on the property to preclude the act from consummation. But, proportionality and probability should be kept in mind while using the property of the plaintiff to intrude and so it is to be proved by the defendant that there was no other option with the defendant other than to intrude in the property of plaintiff.
- Statutory authority: Authorities compelled by the law to carry out search and seizures and cases where consent is taken to conduct a bodily search would not be construed as a trespass on the body of a person. Entry in public places and private property used for a commercial purpose is not trespass considering the societal and public interest in mind.
- Preservation of public peace: A person who disturbs public worship, or public – meeting or a lawful game may be lawfully removed. But the force used to remove should not exceed what is necessary.
An assault is an attempt at battery, or a threat to commit a battery. Battery may include assault, it may be describes as inchoate battery. Where the wrongful act falls short of actual physical contact but cause a reasonable to offer violence, this is an assault. For instance, if a person angrily advances, towards another with the intent of using force, stops short to mere threat, it will be an assault, but if the comes in actual contact with the other person, then it would be battery.
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