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ASSAULT AND BATTERY

INTRODUCTION

In the English law of torts, assault is regarded as a form of trespass to the person. In Halsbury's Laws of England, Third Edition Volume 37 at page 121, it is defined as:"the offer of force or violence to the person of another without lawful excuse is an assault and, if force is actually applied, the assault is a battery; assault and battery are both criminal offenses and actionable torts. . . . . . "

CONTRAST BETWEEN ASSAULT AND BATTERY

Halsbury’s further elaborates upon assault as an attempt to apply force or violence to the person of another in an angry or hostile manner; and if force is actually applied, directly or indirectly either illegally or without the consent of the person assaulted, and in an angry, rude, revengeful, or violent manner, the assault becomes a battery, however slight the force may be.

Further it is important to note that: "mere words can never amount to an assault. There must be some act indicating an intention of assaulting, or which an ordinary person might reasonably construe as indicating such an intention, or some act amounting to an attempt. "

According to Halbury’s, it is very critical to note that: "if no actual violence is used, there must, to constitute an assault, be some threatening act sufficient to raise in the mind of the person threatened a fear of immediate violence; therefore, if an offer is made to strike a person with the fist, at such a distance as to make it impossible for a blow to reach, there is no assault; so, too, where a pistol is presented at a range to which the ball cannot by any possibility carry. "

Salmonds on Torts, further elaborates upon this point by stating that “words do not constitute an assault however, insulting or even menacing; the intent to do violence must be expressed in threatening acts, not merely in threatening speech. Even threatening acts do not constitute an assault unless they are of such a nature as to put the plaintiff in fear of immediate violence. "

In Winfield on Tort, battery is defined as “the intentional application of force to another person. " and assault as "an act of the defendant which causes the plaintiff reasonable apprehension of the infliction of a battery on him by the defendant."

INTERFACE BETWEEN THE ENGLISH AND INDIAN UNDERSTANDING OF BATTERY AND ASSAULT

“Battery" in the English law of tort corresponds to "criminal force" as defined by Section 350, Indian Penal Code, and assault in the English law corresponds to the definition of that term in Section 35 Indian Penal Code.
Section 351, IPC reads: "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."
Thus from our above analysis we could understand that ‘immediacy’ and ‘imminence of the use of force’ are two critical aspect that determine an act as assault or battery.

CASE LAWS

In Pursell v. Horn (1838) 8 A. & E. 602, it was observed that a battery will be preceded by an act of assault, where a person throws water on the other person, till the waterfalls on the targeted person; it amounts to be an act of assault. The moment water touches the body or any part of the body of the targeted person, the act amounts to battery.

Further, in Hopper v. Reeve (1817) Taunt. 698, it was observed that if a person pulls the chair while the other person is about to sit on the chair, till the other person falls and touches the ground, the act will be considered as an assault and if the other person touches the ground, the act becomes a battery.

However, the existence of assault as a preceding act in all cases of battery is not essential, because in certain cases of battery apprehension of such an act may not have been done by the victim. Further, apprehension of injury is not essential to constitute either an offense of criminal force or a tort of battery. Therefore, there exists no difference between the terms battery and criminal force, except that the former is used in the common law and the latter is used in the IPC.

REFERENCES:
Bavisetti Venkata Surya Rao v. Nandipati Muthayya 1963 (2) AN.W.R. 403; 1964 (1) ALT 11; AIR 1964 AP 382; LQ/TelHC/1963/89


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