Assault

• An assault is defined as intentional conduct that is meant to place another person in reasonable apprehension or fear of harmful contact. The contact must appear to be imminent, meaning that the offender must appear to have the present ability to cause the contact, even if he or she is not actually capable of inflicting injury.
• Section 351 of the Indian Penal Code defines assault as follows: “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”.
• An assault is committed without contact or without actual use of force. It is done by the creation of fear of contact using words with some gestures like throwing a fist in the air or rolling the cuffs of the shirt. An assault gives rise to civil or criminal liability.

Ingredients of Assault:

1. There are action and gestures by the person like throwing a fist in the air or rolling the cuffs of the shirt, etc.

• A says to B “I’ll beat you” without any gesture is not an assault.
• A takes up a stick, saying to B. “I will beat you”. Here, the words are supported by gesture may amount to an assault.

2. The intention is to create apprehension or fear in mind of another person towards whom the assault is directed.

• In Stephens v Myers (1830, 4 C & P. 349) case, the defendant made a violent gesture during a meeting at the plaintiff by waiving a clenched fist and advanced towards the plaintiff. He was prevented from reaching the plaintiff by the intervention of remaining members in the meeting. The intention was to commit the battery and hence the gestures were directed to create fear in the mind of the plaintiff. Hence The defendant was held liable for assault.

3. The action should indicate an immediate application of force.

• A throws his fist in the air towards B, who sees the punch coming towards him, and ducks. Thus B is not getting hit at all. Here there is the immediate application of force and in fear, B ducked it. Hence it is an assault by A on B.
• In Tubarville v. Savage case (1669 1 Mod. 3) case A placed his hand on his sword and told another, “If it were not assize-time, I would not take such language.” The justices of assize were in town. Assize-time is a period when the judges were in the town for court sessions. So the meaning of his utterance was that next time when the judges are not in town he will not listen to such language but will take action. In this case, there is a gesture but no immediate threat.  Hence it is not an assault.

4. There should be the present ability of the person to carry out the threat.

• In R. v. James (1844 1 Collector &K 530) case A holds a gun to B’s head. A knows that the gun is unloaded but B is unaware of it. Here B assumes that there is the present ability of A to carry out the threat. Thus there is immediate apprehension or fear in B’s Mind. Hence it is an assault by A on B.
• A holds a loaded toy gun to B’s head. B thinks the gun to be real. Here B assumes that there is the present ability of A to carry out the threat. Thus there is immediate apprehension or fear in B’s Mind. Hence it is an assault by A on B.
• If A by gestures say to B “I’ll shoot you”. There is no gun in hands of A. Thus There is no ability of A to carry out the threat. Thus there is no immediate apprehension or fear in B’s Mind. Hence it is not an assault.

5. The action should create reasonable apprehension or fear in the mind of another person towards whom the assault is directed.

• In State v. Barry (48 Mont. 598) case, A levelled a rifle at B. B didn’t notice him. B only came to know that the rifled was levelled at him when A was practically disarmed. There is no apprehension or fear in minds of B at the instant when the rifle was levelled at him (because he was unaware of it). Hence it is not an assault.

Other Examples of Assault and Not an Assault:

• A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby cause B to believe that he is about to cause the dog to release and attack B. Thus A has committed an assault on B.
• A holds a loaded toy gun to B’s head. B also knows it is a toy gun. Naturally, there is no apprehension in mind of immediate application of force. Hence it is not an assault by A on B.
• Sitting in a hotel, A tells B that he intends to run him over in his car at some point in the future. There is no imminent threat. Hence it is not an assault.
• A swings hammer in the air to put a nail in the wall. He intentionally swings the hammer in the air such that it came very near to head of B. The intention of the act of A was to create apprehension or fear. B noticed and ducked it. Hence there was apprehension or fear in mind of B. Hence it is an assault.
• A swings hammer in the air to put a nail in the wall. He was unaware of any other person nearby. When he swings the hammer in the air it came very near to head of B. The intention of the act of A was not to create apprehension or fear. Hence it is not an assault.
• A swings hammer in the air to put a nail in the wall. He intentionally swings the hammer in the air such that it came very near to head of B. The intention of the act of A was to create apprehension or fear. But B was unaware of this act. Hence there was no apprehension or fear in mind of B. Hence it is not an assault.

Other Case Laws:

• IN Read v. Coper (1853, 13 CB 850) case, the plaintiff came to the premises which he has rented out to the defendant and refused to leave when ordered by the defendant to leave. defendant and some of his workmen surrounded plaintiff, rolled up their sleeves, and threatened to break the plaintiff’s neck if he did not leave. Fearing that the men would injure him, plaintiff left and subsequently filed an action for assault against the defendant. The court held that the plaintiff can sue the defendant for an assault.