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INTRODUCTION

The security of the person of the mankind is the most important function of law. The law of
crimes prescribes different kinds of punishment for different kinds of injuries to the person of a
human being. The law of tort is concerned with the award of damage to person aggrieved.

Assault is an integral part of any criminal activity. Assault is the basis for an act to be considered
as criminal.
Many times it happens that assault is misinterpreted or misunderstood leading to confusion.
Thereafter it becomes difficult to comprehend exactly what act committed was. So, It’s
important to clearly know its meaning to avoid confusion.

The act of assault clearly tells us the legality of the act and also the mindset of the person who
is harming and having wrong intentions.

DEFINITION OF ASSAULT

 Section 351 of IPC

When anyone makes any gesture or preparing to make any gesture will cause another
person who is present there to comprehend that, he who is making the gesture or
preparing for that gesture is about to use criminal force to the other person, then it is
said that an assault has been committed.1

There are 3 elements which are essential to prove an act of assault –1-

1- Intention:- The intention of the person is the first and the foremost thing that is
considered regarding an assault. When the act has been done intentionally like scaring,

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Section 351, Indian Penal Code 1860
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threatening or harming the other person which causes the other person to be harmed
immediately then it is to be considered as an assault. Whereas when an act has been done
unintentionally or by the way of an accident then it is not considered as an assault.

2-Reasonable Apprehension:- Reasonable apprehension means that when the person

who is going to get hurt perceives or gets an idea that he is going to get harmed. If there is no
reasonable apprehension then it becomes difficult to prove assault. If the person who is going
to get hurt has no idea that he is going get hurt then it’s difficult to prove an assault. Causing of
some actual hurt is not necessary for constituting assault. Mere threat may constitute assault. 2

In Muneshwar Bux Singh3, the accused did nothing which may come within meaning of
assault but made such gesture that his followers advanced a little forward towards the
complainant in a threatening manner, he was not held liable.

Example If A attacks B with a weapon by standing in front of him then A has committed
assault. But if A attacks B with the weapon from his back, then it does not suffice to prove
assault as the person being attacked wasn’t aware of the attack.

3- Harm-The harm can be physical harm, harm out of threat or by offensive contact. A mere
verbal threat cannot be considered as an assault unless the person to whom verbal threat is
made assumes that the person is going to use force. When proving assault, the aspect of
reasonableness is also very important. Unless there is no reasonableness of the action, it is
difficult to prove assault. The essence of the offense lies in the effect that is created in the mind
of the person who has or going is to get hurt.

Mere utterance of threatening words does not amount to assault.4 In a case a person took lathi
and shouted that he will break the head of police officer if he insists upon taking his thumb
impression. He was not guilty of assault.5

2
Rupabati v. Shyama, A.I.R. 1958 Cut.710
3
(1938) 14 Luck 409
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ASSAULT IN TORT
According to Dr. Winfield, an assault is an act of defendant which causes in the minds of the
plaintiff reasonable apprehension of the inflict of a battery on him by the defendant. 6

Thus the main test in assault is to create a reasonable apprehension in the mind of the plaintiff
that defendant is about to use force or attempting to use force against him, whether it caused
any harm or not.

An assault is an attempt or offer to apply force to another’s person. Any one , who intentionally
brings any material object into the contact with another person, is said to have applied force to
the person of that other.

Essentials-
In an action for assault the plaintiff has to prove following things:-

1- Intensity to use force,

2- Capacity to use force.

1-Inensity to use force-The first thing that the plaintiff has to show in an action for assault
is that there was some gesture which constituted the force. Mere words are not enough for
passive conduct.

There must in all cases be the means of carrying the threat into effect

For ex- If A while lying on his bed says to B”I will beat you” it will not be assault as there is
neither gesture nor preparation.

2-Capacity to use force-In an order to constitute an assault it is necessary that the person
so assaulted , must on a reasonable ground believe that the person assaulting has the ability to
apply the force so attempted by him. If it is clear to plaintiff that the defendant has no present
4
Annakamu Chettiar, A.I.R. 1959 Mad.392
5
Birbal Khalifa, (1902) I.L.R. 30 Cal. 97
6
R.K.Bangia, Law of Torts
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ability to carry out the thread because he is to far away to bring the threat into action, there is
no assault. Thus if one man makes a gesture to throw the stone into action there is no assault.

Stephen v. Mayer7

Assault must be intentional- a mere gesture not showing an intention to use force instantly is
not an assault.

Tubervile v. sevage8 is an example of the words “ Bangey page no.138”. Thus to constitute
an assault there must be an attempt or actual threat to use force. Thus, if A says to B”I
would hit you had I not got at a wound in my leg” it will not be assault as here A is not
making any attempt.

PUNISHMENT FOR ASSAULT (Section 352 of IPC)

When a person commits assault on another person other than on grave and sudden
provocation given by that person, he shall be punished with imprisonment which may extend
to 3 months or fine extending to 500 rupees or both.9 This is the punishment of assault when
there are no aggravating circumstances. Grave and sudden provocation causing assault will not
lead to punishment under this section.

The punishment also depends upon what were the conditions under which the assault had
taken place and what are its consequences and the condition of the victim after the
commission of the offence.

7
(1830) C & P 349
8
(1669) EWHC KB J 25
9
Section 352, Indian Penal Code 1860
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CONCLUSION

Assault is both a civil wrong and a criminal offence. In Criminal the offence of assault becomes
more heinous than in Tort. In crime the offence of assault is punishable by imprisonment which
may extend to 3 months or with fine or with both, but in tort the offence is punishable only by
compensation.

The punishment also depends upon what were the conditions under which the assault had
taken place and what are its consequences and the condition of the victim after the
commission of the offence.

At present time, the punishment which has been prescribed in section 352 of Indian Penal code
is not sufficient. A fine of Rs. 500 is a very low amount to be given to an offence of any criminal
nature. It was suitable when the act came into force, but looking over present valuation of
money the amount of Rs 500 is very less. Therefore, some provisions in Indian Penal Code
which provide such punishment must be amended from time to time. So, the fear of
committing that offence stays in the eyes of the people of the society.
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BIBLIOGRAPHY

1- Prof. S.N. Misra, Indian Penal Code,Central Law Publication

2-Bare Act, Indian Penal Code, 1860, Central Law Agency
3-R.K.Bangia, Law of Torts
4- Winfield, Law of Torts, Sweet and Maxwell Publication
5- Ratan Lal and Dheeraj Lal, The Indian Penal Code,
34th Edition, Lexis Nexis