Assault and Battery

Introduction

Assault and battery are those unlawful activities that give rise to both civil and criminal liability. Assault in both civil and criminal refers to a violent attack physically, verbally or any bodily harm which puts the victim in fear of such harm. An assault takes place even there is no harm to the victim. The purposeful creation of fear is the main element. Assault under Section 351 of the Indian Penal Code is “Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault”.

Example: 

  • A holds a knife near B’s neck. (Mere holding of knife creates a fear to B, which amounts to assault). 
  • A throws a stone towards B’s head, but B was never aware of the act. (As the victim is not aware there is no form of fear is created. Thus does not amounts to assault.)

   The battery is an act that results in harmful bodily injury to the victim, without the victim’s consent. A battery can be defined as a completed assault. The intention is one of the main element which amounts to Battery. 

Example;

  • Poisons B’s drink. 
  • Patting a person to congratulate. (Mere physical contact towards a person does not amount to Battery. Some harm should have taken place.)

Elements of Assault and Battery

Assault  

  • An act created: An act to be proved as assault only when a situation of fear is created in the victim’s mind. An unintentional accident can be called as an assault. 
  • A reasonable fear: Further to constitute an assault the victim must believe that the other person’s action will cause harm and fear is created. The victim must understand that the other person is capable of harming him or her.
  • Harm: The harm can be physical or out of threat. A mere verbal threat cannot be considered as an assault unless fear is created in the victim’s mind that the other person is capable of using force or harming. The main essence of assault lies in the fear created in the mind of the victim and the main way to prove assault is the fear created.

Battery

  • The act: The act must result in causing physical harm or injury such as hits, cuts, wounds, etc to the person. Even though there is no prominent blood loss, the victim can still call it an act of battery. Another way constituting battery causes no harm instead will be an act which is insulting or hurtful. Example: offensive touching of someone against their will.
  • Intention: to constitute a battery physical harm is needed but there is no requirement that the person causing such harm should have the intention to do that. In this case, consent can be taken as a defence. For example, A person walking in a crowd has to know that people will hit him. By walking in a crowd a person implicitly gives consent for a certain amount of physical contact. 
  • Harm: Any direct or indirect harm should be caused to the victim which is necessary for the battery. The actions of the person do not need to affect the victim directly. Example: A person making his dog bite the victim also amounts to battery. 

It also amounts to the battery when a person fails to do an act when he or she had the responsibility to do so. Example: A teacher fails to notify the students regarding the danger in a play area, causing them injury amounts to battery.       

Difference between Assault and Battery

BasisAssaultBattery
DefinitionIt is an attempt to create fear without harmIt is an attempt to harm a person physically, or mentally using force.
ElementThe threat of harming is necessary, no physical harm is needed.Physical harm is needed.
PurposeTo threatenTo cause harm
ChargesCan be charged even if no harm is causedOnly when harm is caused can be charged under battery.
JustificationSelf-defense or defenseSelf-defense,defense, necessity.

Statutory provisions for assault and battery

Assault and battery are referred to as different crimes for which the charges are laid down separately. 

The Statutory provisions about the battery are specified under section 349 and 350 of the Indian Penal Code 1860. Chapter XVI of the Indian Penal Code explains the offences which cause bodily injury. Section 349 of the Indian Penal Code provides for the definition of force and Section 350 defines the criminal force. Section 352 of the Indian Penal Code provides for the punishment for the battery. 

Section 349 – Force

  1. A person using the force should cause motion, change of motion or cessation of motion to another person
  2. Such motion can be caused either directly or to any substance which is brought into contact with any part of that other person’s body, or his wearing or carrying, or with any of his sense of feeling
  3. Such motion, change of motion or cessation of motion is caused in either of the prescribed three ways-
    • By his bodily power
    • By disposing of any substance concerning such act
    • By inducing an animal to do such an act

Section 350 – Criminal Force

Whoever intentionally uses force to any person, without that person’s consent, to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

In case of assault the statutory provisions are given under the Indian Penal Code, 1860. Section 351 of the Indian Penal Code provides for the definition of Assault. The Assault and punishments in different cases under IPC are: 

Section 353- Assault or criminal force to deter public servant from discharge of his duty

Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public serv­ant, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

 Section 354 – Assault or criminal force to woman with intent to outrage her modesty

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine, or with both.

Section 355 – Assault or criminal force with intent to dishonour person, otherwise than on grave provocation

Whoever assaults or uses criminal force to any person, intending thereby to dishonour that person, otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either de­scription for a term which may extend to two years, or with fine, or with both.

Section 356 – Assault or criminal force in an attempt to commit theft of property carried by a person 

Whoever assaults or uses criminal force to any person, in attempting to commit theft on any proper­ty which that person is then wearing or carrying, shall be pun­ished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 357 – Assault or criminal force in attempt wrongfully to confine a person

Whoever assaults or uses criminal force to any person, in attempting wrongfully to confine that person, shall be pun­ished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

Section 358 – Assault or criminal force on grave provocation

Whoever assaults or uses criminal force to any person on grave and sudden provocation given by that person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both.

Section 352 

Whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. 

 Causing Assault under grave and sudden provocation does not amount to any punishment under the section. 

Case Laws 

R v Constanza[vi] states that mere words can also amount to fear and thus constituting assault. Which means verbal threat also amounts to assault. For example, the statement “I am going to punch you” does not need the action of punching. Mere statement  can also bring fear in a person, causing assault. 

R v Ireland[vii] in this case the defendant made many phone calls and was silent in the call causing fear and severe psychological damage. Thus, the court gave the judgement that mere silence also amounts to assault as fear is created. 

Kader v K.A. Alagarswamy[viii] in this case a police officer used handcuff for the prisoner taking treatment in a nearby window in the hospital. It was stated that using force and treating a person like an animal is unjustifiable and the police officer will be responsible for such an act.

Fagan v Metropolitan Police Commissioner[ix] was, driving a car on a person’s foot was held to be harmful act amounting to the battery. In this case, Actus Reus played a major role which means the mental state of the person.  

R v Thomas[x] stated that touching a person’s cloth without their consent is sufficient to cause battery and do not need to feel the force directly.

R v Miller[xi] stated that any injury or hurt which causes unhealthiness or discomfort to the victim amounts to battery.

Hopper v. Reeve[xii] where it was stated the pulling a chair when a person is about to sit and make a person fall on the ground amounts to battery. Until the person touches the ground it amounts to assault.


Conclusion

So, battery refers to the intentional creation of harm to a person or his property, and assault refers to the creation of fear of harm towards a person. In the case of battery physical contact is very important and in assault, intentional creation of fear is enough. As fear or physical harm affects the person the victims have remedies. There are legal remedies where compensation can be claimed by the victim and Restitutionary remedies to restore the position of the victim. Thus, mere physical contact or fear does not amount to battery or assault. Some elements are required to constitute assault and battery.

Questions

Ques 1. What is meant by assault and battery?

Assault and battery are those unlawful activities that give rise to both civil and criminal liability. Assault in both civil and criminal refers to a violent attack physically, verbally or any bodily harm which puts the victim in fear of such harm. The act must result in causing physical harm or injury such as hits, cuts, wounds, etc to the person. Even though there is no prominent blood loss, the victim can still call it an act of battery. Another way constituting battery causes no harm instead will be an act which is insulting or hurtful.

Ques 2. What are the elements required to constitute assault and battery?

Assault: The threat of harming is necessary, no physical harm is needed.

Battery: Physical harm is needed.

Ques 3. Are Assault and Battery the same crime or two different crimes?

Assault and battery are referred to as different crimes for which the charges are laid down separately. 

The Statutory provisions about the battery are specified under section 349 and 350 of the Indian Penal Code 1860. Chapter XVI of the Indian Penal Code explains the offences which cause bodily injury. Section 349 of the Indian Penal Code provides for the definition of force and Section 350 defines the criminal force. Section 352 of the Indian Penal Code provides for the punishment for the battery. What is the difference between assault and battery?

Ques 4.What is the difference between Assault and Battery?

Assault: It is an attempt to create fear without harm. The threat of harming is necessary, no physical harm is needed. To threaten. Can be charged even if no harm is caused. Self-defense or defense.

Battery: It is an attempt to harm a person physically, or mentally using force. Physical harm is needed. To cause harm. Only when harm is caused can be charged under battery. Self-defense,defense, necessity.

Ques 6. “Mere silence also amounts to assault”. Justify

A mere verbal threat cannot be considered as an assault unless fear is created in the victim’s mind that the other person is capable of using force or harming. The main essence of assault lies in the fear created in the mind of the victim and the main way to prove assault is the fear created.

References

[i] http://lawtimesjournal.in/battery

[ii] https://blog.ipleaders.in/assault-as-a-tort-and-its-remedies

[iii] https://criminal.findlaw.com/criminal-charges/assault-and-battery-defenses.html

[iv] https://indiankanoon.org

[v] Indian Penal Code,1860

[vi] R v. Constanza , 1997 Crim LR 576

[vii] R v Ireland, 1997 3 WLR 534

[viii]  Kader v K.A. Alagarswamy,  AIR 1965 Mad.438

[ix]  Fagan v Metropolitan Police Commissioner, 1969 1 QB 439

[x] R v Thomas, 1985 Crim LR 677

[xi] R v Miller, 1954 2 All ER 529 [1] Hopper v. Reeve, 1817 Taunt. 698

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