Assault And Battery – Definition, Elements and Difference Between Them

Assault and Battery are often used interchangeably but they are different. They both are intentional tort. Every Battery includes assault but every assault does not include a battery.

Assault generally means when a person planned and tries to harm another person which also includes giving threats to someone else and Battery, on the other hand, it means when a person tries to compromise to harm physically to another person without the person’s consent.

Assault and Battery can be treated in both ways that means a person can be charged in civil lawsuit i.e. demanding for compensation in the form of damages in monetary terms or maybe in criminal lawsuit if the accused found guilty for the offense can be put in jail.


Assault comes in a picture before the battery. It happens when a person plans and tries to harm to another person when a person commits an act of battery. Act of assault can be tried under civil lawsuits as well as criminal lawsuits.

Assault as a tort

It is civil assault, in which the person can sue the respondent for the full extent of his loss, which may also include lost earnings and pain and suffering of the past and future.

The accused made a reasonable apprehension of the infliction of a battery on another person. When the accused creates his act by an apprehension in the mind of the person that he is going to commit battery against the person, the wrong of assault is completed.

An inappropriate comprises of an endeavour to do hurt as opposed to the damage being caused in this manner. In assault charges must incorporate direct that is offensive which is offensive or makes someone else dread of their wellbeing. This unmistakably implies one can be liable of an attack regardless of whether he/she didn’t truly hurt the person in question.

In R v St George[3] the court held that if a person is holding a loaded gun to another person then this will be treated as an assault. Even if the gun is not loaded but the person is holding a gun from such distance that it may cause injury then maybe an assault.

Assault as a crime –

It is a criminal assault in which the person can be put bind the bars and he may be imprisoned, and may also have to pay a fine and reinstatement. But the fine would be paid to the government, and restitution would most likely cover only the medical bills, not your non-economic losses such as pain and suffering stemming from the incident.

A clenched fist would be treated as an assault, but throwing a punch and hitting the person will amount to battery. Under section- 351 of the Indian Penal Code define assault as criminal offences.

If any person planes or make any gesture or do any action in which he is about to use criminal force to another person, then it said to be an assault. If a person is using mere words then it does not amount to be an assault, but the words used by the person may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

Elements of the crime of assault are:

  1. An act intended to create harm: to prove the crime of assault then the person’s behaviour must be motivated to create a situation of fear or danger in the victim’s mind. Accident acts do not include allegations of assault.
  2. A reasonable apprehension: the person must indicate and the victim must believe that the person’s conduct will harm me and he has the intention to cause it. The victim has reasonable circumstances and the accused action is showing that he will cause harm then assault has taken place.
  3. Imminent harm must be there: there should be prima facia to do that harm. If a person showing a gesture to cause harm to another person then it should be immediate and cause a reasonable apprehension in the mind of any prudent person.

R v. Constanza[4] in this case the defendant uses the word will show the gesture it may harm her, he used to follow her, send her letter and write offense words on the door. The court overruled the judgement of R v. Meade and Belt and held that the word which is used by the defendant is offensive and does commit an assault.

Hopper v. Reeve[5]

If a person is about to sit on a chair and the chair is pulled, there is an assault as long as he takes to fall to the ground. The moment he makes contact with the ground, it will become a battery.


It means when a person came in physical contact or touches thing which belongs to that person or things related to that person with the intention to harm the other person this is known as Battery. In this the main ingredient physical conduct, when the accused came in physical contact with the intention to harm another person then the offense of Battery will be committed. Every battery includes assault that’s why they both are used together mostly.

The offence of battery can be committed in a civil lawsuit as well as in a criminal lawsuit.

  1. Criminal battery
  2. Civil battery

1. Criminal Battery

When the battery is dealt with in criminal lawsuit, it means when a person makes physical contact with the intention to harm/kill another person this will be considered as Battery as a crime, in this intention plays the important role of which to kill another person. Under section-350 of the Indian Penal Code, the battery is mention under the head of the criminal force.

This defines as if any person uses any kind of force without the person’s consent and commits any offence while using such force so that he can cause any injury, fear, or annoyance to the other person that is known as Criminal Force.

2. Civil Battery

The civil Battery is regulated as a tort because this is a civil wrong. When a person hurts or harm another person but he has no intention to hurt or to harm that person and the accused also not aware that the accused force will harm or hurt the person, then this civil battery. Under this intention is not there to hurt someone so the person can file a complaint in civil court.

Elements of Battery are as follows-

1. Use of Force

It means the use of force against any person without any justification. The force has been used to cause harm to another person no matter whether the harm is small or trivial in nature. The use of force is necessary while constituting offence of Battery. It can be done with stick, heat or any other item which will cause harm to another person.

2. Without lawful justification

The force which is used by the accused must be unlawful. The accused must not present any legal justification to justify his action. The accused must have intention to hurt or kill to another person.

Leigh v. Gladstone[1] In this case court pointed out that intention is the necessary element to prove the guilty to the accused. The force is used by the accused to feed the hunger strike prisoner to save their life was a valid defence. Any injury caused during the course of action was unintentional or injury is caused by accident, this accident will do not constitute offence of Battery.

Stanley v. Powell[2] the court held that the defendant was not liable as the act was not willful. Use of force to oust a trespasser is also justified, but it should be reasonable.

Difference Between Assault And Battery

Assault Battery
Every assault does not include battery Every battery includes assault.  Battery is an aggravate form of assault.
Assault is the attempt to commit battery. Battery includes intentional application of force to another person without any lawful justification.
This is done to threaten a person This done to cause harm to a person.
here physical contact is not necessary In battery there must be a physical contact
For an Assault a mere apprehension of danger is sufficient. For a battery there must be an actual application of physical force.

[1] (1909) 26 T.L.R 139

[2] (1891) 1 Q.B 86

[3] 1840] 9 C&P 483

[4] (1997) Crim. LR 576

[5] (1817) Taunt. 698

This Article is Authored by SHAVI VATS, 4th Year BBA.LLB Student at JEMTEC School of Law, GGSIPU, Greater Noida.

Also Read – Nuisance Meaning, Difference Between Public And Private Nuisance.

Law Corner

Leave a Comment