Assault and Battery are some offences which are a part of our day to day lives. At times, we are not even aware of the happening of such offences. The first part of this article would deal with the tortious liability of Battery. The second part shall deal with the offence of Assault and its tortious and penal aspects. The third part will compare both these offences and would lay down the differences between them.
Tortious liability of Battery
The battery in tort can be defined as “A harmful, or an offensive, touching of the plaintiff’s person, caused directly or indirectly by a voluntary act of the defendant with an intention to inflict a harmful or an offensive touching, is a battery.”[i]
In simple words, if a person touches another person causing direct or indirect harm to the person, it will amount to battery. Causing harm is not essential for the battery. There can be instances when a person touches another person without causing any harm to him but the touch can be offensive. It may have been done with the intent to harm the dignity of the person. Touching a person in a friendly way, and benevolent manner would not amount to battery.
In a case, the respondent forcibly pushed the plaintiff’s hat back on his head. He wanted to see his face and identify him. It was held to be a battery.[ii]A milkman against the express commands of his customer entered the latter’s sleeping room early one morning. The milkman forcibly wakened the plaintiff in order to present a milk bill. He was held liable in trespass for a battery.[iii]In another instance, the parish officials forcibly chopped a pauper’s hair. The same amounted for the battery.[iv]
Tortious Liability of Assault
In the landmark case of Lewis v. Cooper[v], it was asserted that “An assault is an attempt or offer with violence to do a corporal hurt to another, as if one lift up his cane or fist at another in a threatening manner, or strike at him with a stick, his fist, or any other weapon, within striking distance, but miss him.”
The definition lays down certain essentials are as follows:
- There should be an intent to inflict battery on another person.
- A manifest and explicit act is done to inflict battery. It should not be an act of violent or abusive language. Threats over telephone also do not constitute an assault.
- There is an apprehension of assault. The targeted person should have an apprehension that he is going to be attacked.
For example: If A attacks B with a stick from front, this can amount to assault. But if the same incident happens from backside of B, then it would not amount to assault.
Assault under the Indian Penal Code
According to Section 351 of the Indian Penal Code, Assault has been defined as “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.” [vi]
In layman terms, if a person makes gestures or tries to perpetrate knowing that such preparation would cause harm or in his gestures indicate that he is going to use criminal force against him, such actions would amount to an assault. The criminal force has been defined under Section 350 of IPC which says that if a person uses force against another person without his consent and causes or intends to cause harm to the other person, it would amount to criminal force.
Illustrations for use of Criminal Force:
If A incites a dog to jump over Z without his consent with the intention of causing injury, fear or annoyance to Z, A has used criminal force.
Illustrations explaining Assault
If X showsfirst to Z with the intention of hurting him, he has committed assault.
Are assault and battery the same?
The answer is certainly “No”. They both are distinct from each other. This can be understood with the help of some case laws.
In the use of Pursell v. Horn[vii], it was observed that an act of battery will be generally preceded by an act of assault. Throwing a bucket of water on another person would be an assault till the water does not splash on the targeted person. Once the water touches the targeted person, it would be an act of battery.
In another case of Hopper v. Reeve[viii], the same was explained through another example. It said that if A was going to sit on a chair and B intentionally pulls the chair back so that A falls down on the floor, it would be an act of assault till the time, A does not touches the ground. Once A touches the ground, it would become an act of battery.
In another case AIR 1932, ALL 54 it was held that medical examination of a woman without her consent amounts to assault.
In a nutshell, it can be concluded that the assault is a stage before battery. Assault generally involves the apprehension of causing hurt or fear whereas Battery causes manifest hurt. This is not a hard and fast rule, but it certainly explains subtle distinctions between assault and battery.
[i] . W.D. Rollison, Torts: Assault Battery, 17Notre Dome Law Review, 1941.
[ii] . Seigel v. Long, 169 Ala. 79,
[iii] . Richmond v. Fiske, 160 Mass. 34
[iv] . Forde v. Skinner, 4 Car. & P. 239
[v] . 3 Blackf. 407 (1834), H. 24.
[vi] . Section 351, Indian Penal Code 1860.
[vii] . AIR 1965 MAD 438.
[viii] . (1838) 8 A. & E. 602
This article is authored by Sudhanshu Sachan, Second-Year, B.A. LL.B (Hons.) student at Central University of South Bihar
Also Read – Nuisance Meaning, Difference Between Public And Private Nuisance.
