ASSAULT AND BATTERY

MODULE II

 ADV.HARMEET SINGH
 AMITY LAW SCHOOL NOIDA
Assault
 In common law, assault is a tort, an act of the defendant which causes
to the plaintiff reasonable apprehension of the infliction of a battery on
him by the defendant.
 When the defendant creates his act by an apprehension in the mind of
the plaintiff that he is going to commit battery against the plaintiff, the
wrong of assault is completed. The wrong consists of an attempt to do
harm rather than the harm being caused thereby.
 In assault charges must include conduct that is offensive which is
offensive or causes another person to the fear of their safety. This
clearly means that one can be guilty of assault even if he/she did not
physically harm the victim.
 In the case of R. v. S. George, the pointing of loaded gun to another is
an assault. If the pistol is not loaded, then even it may be an assault,
if pointed at such a distance that it may cause injury. if a person
advances the manner of threatening to use force , then there is
assault. This was decided in the case of Stephens v. Myers.
Elements of Assault

 If one or more elements have not been satisfied then It can be a

defense to an assault charge. Elements of the crime of assault are:
 An act or conduct intended to created: To prove a criminal
attack, the defendants’ 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.
 A reasonable apprehension: Further, the victim must reasonably
believe that the defendant’s conduct will harm or humiliate him. The
victim must understand the defendant’s potentially harmful or
offensive acts.
 Of imminent harm: The victim’s fear must be a direct response to a
threat that is imminent. Future threats, such as “I will beat you
tommorrow”, will not result in assault charges. In addition, there
must be some kind of perceived physical threat to the victim in the
loss; For this reason, words by themselves generally do not
constitute an attack.
 It is believed that the defendant’s actions would cause physical
danger or abusive behaviour to the victim. Thus, the pretence of
kicking or punching the victim may be an attack, as will attempt to
spit on the victim (aggressive behaviour).
 All of the above elements must be present and the evidence must be
supported with evidence if found guilty for the attack.
 It can be difficult to prove whether the defendant actually intended
the attack. Similarly, judges often spend a lot of time determining
whether a defendant’s actions are considered harmful or abusive. In
determining this, they will consider what an average person may
perceive as harmful or aggressive.
Difference between Assault and Battery

Assault Battery

Battery includes intentional

Assault is the attempt to application of force to another
Definition commit battery. person without any lawful
justification.

Threat of violence is enough for Physical contact is needed.

Important aspect assault. No physical contact is
necessary.

Create reasonable
· There should be use of force.
apprehension in the plaintiff’s
Principle mind that immediate force will
· The same should be, without
any lawful justification.
also be used.

Objective To threaten a person. To cause harm.

Nature Not necessarily physical. Must be physical.

Difference between Criminal and Civil Assault
Civil assault Criminal assault

If the respondent is convicted, he may

be imprisoned, and may also have to pay
In civil assault, to sue the respondent for a fine and reinstatement. But the fine
the full extent of his loss, including lost would be paid to the government, and
Meaning earnings and pain and suffering of the restitution would most likely cover only
past and future. the medical bills, not your non-economic
losses such as pain and
suffering stemming from the incident.

After an attack, the victim should report

In civil assault case, a District Attorney is to the police. The police will then make
Procedure
not involved. The matter is brought by an arrest, take action on the alleged
the plaintiff. The plaintiff has more attacker and refer the case to the District
control in the case of civil assault. Attorney.

Punishment A win for the District Attorney, results in When the plaintiff wins, the defendant
jail term, a fine, or both. will not go to jail, but will have to pay
financial compensation.
Legal defenses on charges of Assault

As with other types of criminal charges, there may be some defenses to assault
charges. This will depend on each individual case, as well as other factors such
as state law. Faults commonly charged with assault charges include:
1. Self-defense: This could be a defense if the defendant was acting out of
self-defense. They should only use the amount or display of force that is
appropriate in the situation and in proportion to the force being used
against them.
2. Intoxication: In some cases, intoxication can be a legal defense, especially
in cases where intoxication affects a person’s ability to act intentionally.
3. Coercion: This may be a defense if the defendant was forced to attack
under threat of harm (for example, if they are being held at gunpoint and
for assault at the behest of someone).
4. Lack of proof / proof: As stated above, if the elements of proof are not
found or supported with the correct evidence, it can serve as a legal
defense.
Many other types of avoidance may exist depending on the circumstances.
Fagan v Commissioner of Police for the Metropolis
 Fagan was sitting in his car when he was approached by a police officer who
asked him to take the vehicle. Fagan did so, overturned his car and rolled over
a police officer’s leg.
 The officer forcefully asked him to remove the car from his leg, to which Fagan
swore him and refused to take the vehicle and shut down the engine. Fagan
was convicted of assaulting a police officer in the execution of his duty.
 Fagan later appealed the decision. The court held that, Although assault is an
independent crime and is to be treated as such, for practical purposes today,
assault is generally synonymous with battery.
 On this basis, it was held that Fagan’s crime was not the refusal to move the
car but that having driven on to the foot of the officer and decided not to
cease the act, he had established a continual act of battery. This meant that
actus Reus and mens rea were present and as such, an assault was
committed. Fagan’s conviction was upheld.
R. V. Constanza
 A man was convicted of assault occasioning actual bodily harm of a female ex-
colleague. For a period of almost two years, the man followed the women home from
work, made numerous silent phone calls, wrote her over 800 letters, drove past her
house, visited her house without consent, and wrote offensive words on her house’s
door three times.
 Following these actions, she received two additional letters with threatening language.
She was soon diagnosed by a doctor as suffering from clinical depression and anxiety
due to apprehended fear caused by the man’s actions and letters. A man was
convicted of assault occasioning actual bodily harm of a female ex-colleague.
 For a period of almost two years, the man followed the women home from work,
made numerous silent phone calls, wrote her over 800 letters, drove past her house,
visited her house without consent, and wrote offensive words on her house’s door
three times.
 Following these actions, she received two additional letters with threatening language.
She was soon diagnosed by a doctor as suffering from clinical depression and anxiety
due to apprehended fear caused by the man’s actions and letters.
Remedies

1. Action for damages- Whenever the plaintiff has been wrongfully

detained, he can always bring an action to claim damages. Compensation
may be claimed not only for injury to the liberty but also for disgrace and
humiliation which may be caused thereby. According to McGregor on
damages, the details of how the damages worked in false imprisonment
are few: generally, it is not a pecuniary loss or of dignity and is left to the
jury and their discretion. The principle heads for damage would appear to
be the injury to liberty, i.e., the loss of time considered primarily from a
non-pecuniary viewpoint, and the injury to feelings, i.e., the dignity,
mental suffering, disgrace and humiliation with any attendant loss of
social status.
2. Self help– This is the remedy which is available to a person who while he
is still under detention instead of waiting for legal action and procuring his
release thereby.
3. Habeas Corpus– It is speedier remedy for procuring the release of a
person who is wrongfully detained. Such a writ may be issued either by
the Supreme Court under Article 32 or by a High Court under Article 226
of Indian Constitution. By this writ person detaining is required to produce
the detained person before the court and justify the detention. If the court
finds the detention is without any just or reasonable ground, it will order
that the person detained should be immediately released
 It is just possible that the person wrongfully detained may have been
set free by the time the writ of habeas corpus is disposed off. The
court hearing the petition may grant compensation as ancillary relief
in such cases . in the case of Rudal Shah v. State of Bihar and Bhim
Singh v State of J&K, the Supreme Court granted such compensation
in writs of habeas corpus.