• Lex Specialis

Assault and Battery

- Niyati Nagar

An assault is an attempt or a threat to do a corporeal hurt to another, which is coupled with an apparent present ability and intention to do the act. Actual contact does not play an important role in assault though it plays in 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.Stephens v. Myers. Any gesture calculated to excite in the party threatened a reasonable apprehension that the party which is threatening intends immediately to offer violence, or stating the language of Indian Penal Code it is about to use criminal force, to the person threatened together with the present ability to cause the act into effect is an assault in law. It is important to understand that the act and intention together constitutes assault. Therefore, if one strikes upon another a hand, arm, intending to assault strikes and misses it the act very well covers the definition of assault so if he hold up his hand against another in a threatening manner and says nothing is said to commit an act of assault as it fulfils both the criteria of act as well as an intention. Tuberville v Savage. Mere words do not amount to an assault.

As an Offence under Indian Penal Code, 1860

The Indian Penal Code, 1860 classifies assault as an offence under chapter XVI which mainly deals with offences affecting the human body. S.351 of IPC defines assault and s.352 prescribes punishment for the offence. The essentials of assault includes any gesture or any preparation; such gesture or preparation is intending or knowing it to be likely to cause any person to apprehend use of criminal force against him. In the case of Muneshwar Bux Singh v King emperor the accused made some gesture because of which his followers advanced a little forward towards threatening manner. It was held that the accused is not guilty of assault as his gesture did not cause apprehension of harm to the complainant. Assault or application of criminal force made under sudden and grave provocation given by the person apprehending such an offence, to mitigate is a predominately a question of fact. In the case of State of Karnataka v. Kamalaksha the court observed that if mere words or gestures can cause grave provocation, there can be no manner of doubt that its possibility will be all the more filthy abuses are hurled.

Assault equated to tort

Under the Common Law regime assault is considered to be at par with tort. Assault as a tort will be completed when one person by his acts creates an apprehension in the minds of the other person that the former will be committing battery against the latter. In the case of R v. S. George, it was held that even if a pistol is unloaded it may cause assault when it is at a distance, because if loaded it may cause an injury. Therefore, assault can be construed as a tort if there exists prima facie ability to cause harm.

In Stephens v. Myers, an act wherein the plaintiff faced a clenched fist of the defendant the act was held to be assault. Further, in Pursell v. Horn, throwing of water was held to be assault. But, if the water falls on the plaintiff, it amounts to battery. Assault becomes battery if the person apprehending the harm is inflicted with that harm as apprehended by him. Therefore, till the act remains to be a threat, it is considered as assault.

Dwelling into the concept of Battery

A battery is an intentional and direct application of physical force to another person. It is actually striking another person or touching him in a rude, revengeful and insolent manner. In the case of Cole v Turner it was stated, first that touching another person in anger is a battery. Secondly, if two or more meet in a narrow passage and without any violence or design of harm if one touches another it is no battery. Thirdly if any of them uses violence against others to force his way in an inordinate manner it constitutes battery or any struggle about the passage to that degree as may do hurt will amount to battery. A battery includes an assault which briefly stated is an overt act evidencing an immediate intention to commit a battery. It is fairly distinguishable from assault that a physical contact is necessary to commit it. Some of the cases like laying hold of a person so as to restrain them, Rawling v. Till spitting in the face, throwing over a chair or a carriage in which another person is sitting,Hopper v. Reeve taking a person by collar amounts to battery. Battery requires actual contact with the body of another person. If the defendant intended to assault, in other words if he had the capacity to understand the nature of the act, and he struck the plaintiff he would be liable for assault and battery even if he did not know, because of mental disease, that what he was doing was wrong.


A civil action lies for an assault Raghbinder Singh v. Bant Kaur, and criminal proceedings may also be taken against the wrongdoer. Assault is basically the apprehension that the other person is going to get hurt. It is done to another person with the use of criminal force coupled with the ill will to harm the other person. Assault is generally followed by battery and therefore stricter rules with respect to assault per se be made to prevent the situation of aggravated assault or battery. The boundary between assault and battery is blurred and there are instances when assault is taken as for battery. However, the article clarifies the situation as to the offense of assault and battery separately, and therefore establishes the difference.


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