Assault & Battery – essentials, defences, examples – law of torts


Assault can be defined as the attempt or effort made towards harming someone or creating a sense of threat in a person’s mind. Assault has been defined in the Indian Penal Code (IPC) under Section 351 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 as assault.’

Battery is the actual physical force applied in order to harm someone’s person or their property intentionally.


The key essentials of assault include:

  1. An intention or specific malafide thought to cause harm to another
  2. Creating a sense of fear in the other person
  3. Causation of the said fear/ More than just mere words
  • Unlike battery, assault does not require physical force. All that is required to prove assault is the creation of a sense of threat in the other person’s mind. However, the act that consists of assault must be blatantly fearsome for example, waving a baseball bat and saying the words, “I will hit you” can be deemed as assault as it is a blatant act that creates apprehension in the person’s mind.
  • It is also to be noted that mere words do not constitute assault and words must be accompanied by an intentional act to cause fear in the other person. Moreover, the threat must be immediate in nature, that is, the act of waving the bat and saying those words can lead to an immediate consequence of being beaten right then and this amounts to assault however, if one states that he will hit the other person a week later, it does not amount to assault as the threat was not immediate.
  • In the case of Ashton v. Jennings[1] it was held that mere words do not amount to assault and the brief facts of the case were that in a board meeting, due to some misunderstandings, one of the participants wives threatened another woman with a few malicious words however, since they were not accompanied by an immediate threat, the case was dismissed.


The key essentials of Battery include:

  1. Actual Application of Force
  2. Infringement of the Personal Space of another individual
  3. The harm caused
  • Unlike Assault, intent to cause injury in specific is not required however, intent to perform the act must be present. Infringement of space and harming of the individual’s person or belongings must be proved in order to prove battery.
  • Emotional or Mental harm is also taken into consideration in cases of battery however this may be significantly harder to prove.

There are three ways in which battery may be committed:

  • By his own bodily power
  • By inducing any animal or thing to move, change or cease its motion
  • By disposal of substances in such a manner that it causes some damage to another person

Section 349 of the Indian Penal Code (IPC) defines the term ‘Force’ and Section 350 defines Criminal Force.

It is pertinent to understand that there can be battery without assault such as if a cricket ball accidentally hits someone nearby. There was no previous threatening gesture made intentionally and so this is a case of battery without assault. The direct body contact is also not a prerequisite to battery. Hitting someone with a bat deliberately can be deemed as battery even though there was no direct body contact. The force applied must also be reasonable for the act to be considered as battery.

There exist two types of battery: Civil and Criminal Battery.

In cases of civil battery (which is covered by the law of torts), the damage is quantifiable i.e the harm can be calculated in terms of financial terms and can be monetarily compensated however, in cases of criminal battery the element of mens rea or a malafide intent is absolutely necessary before committing the offence. Sexual crimes include criminal battery.

In the case of Sitaram v. Jaswant Singh, a man tried to prevent another individual from entering his premises by striking the man with an axe and the court ruled that this was a case of criminal force because he used an unnecessary amount of force in order to stall the man from entering his premises.


  • The defence against charges of battery include self-defence, defence of property, consent and defence of others.
  • For self-defence to be applicable, there must be a reasonable apprehension, a lack of provocation and no other alternative present in order to save oneself.
  • Defence of property – similar to self-defence, but in this case, the act is done in order to save one’s property rather than one’s person.
  • Defence of Others – If an act of battery is committed while trying to save another individual or group of people, the act may be excused.
  • Consent – If the victim has given prior permission or explicit consent to perform a certain act, then the person committing the act is not liable.


One of the key differences between assault and battery is their purpose. While assault is aimed at threatening and not necessarily causing harm to another person, battery focuses primarily on the physical force applied which causes actual harm to the person.

A few cases that can be referred to under assault and battery are:

  1. Vosburg v. Putney – wherein the defendant unlawfully kicked the plaintiff and this caused the loss of a limb. It was held that the burden of proof lies upon the plaintiff to show the malafide intention however, the defendant was held liable for all acts done by his force, foreseeable or not.
  2. Garatt v. Dailey – wherein, during a prank, the defendant pulled a chair out from under the plaintiff as a joke which caused an injury. The Court ruled in favour of the defendant and stated that there was indeed elements of assaAult involved.

[1] Ashton v. Jennings, (1674) 2 Lev 133

Author: Keerthana R,
2nd Year, Christ University

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