Dhruva Vig
In a society dominated by individual thought and personal beliefs, clash of opinions is bound to happen. These clashes may take up various forms, that is, assault, intimidation, battery, harassment, trifles and/or criminal force. The legal system of our country takes note of such instances and has provided specific redress for every instance.
The law on these offences varies in degree of hurt and intent. Therefore, it is incumbent upon the courts to associate the correct law with the act committed, and intent behind commission of such act to meet the ends of justice.
In this article, we shall try to cover the various laws relating to the offence of assault, and how various courts of the country have dealt with the issue from time to time.
The offence of assault is usually committed by involvement of two parties to the act, i.e., the assailant and the victim. Under Black’s Law Dictionary, assailant[1] has been defined as “one who physically attacks another; one who commits an assault. Or one who attacks another using nonphysical means; esp., one who attacks another’s position or feelings, as by criticism, argument, or abusive language.”
An assault[2] on the other hand may be defined as, “the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.” Also defined as “an attempt to commit battery, requiring the specific intent to cause physical injury.”
Another form of assault is aggravated assault[3], which refers to “criminal assault accompanied by circumstances that make it more severe, such as the intent to commit another crime or the intent to cause serious bodily injury, especially by using a deadly weapon.”
Essentials for committing Assault
Generally, an assault is more than just mere words, or the communication made from one to another. Words alone, without an act, cannot constitute the offence of assault. Therefore, it can be said that not all threats are considered assault.
For an act to rise to the level of an actionable offense in the eyes of law, two main elements must be present:
- Intent to cause apprehension
The act was intended to cause apprehension of harm or offensive contact in the mind of the person against whom it was made; and
- Apprehension of imminent harm
The said of assault act indeed caused apprehension in the mind of the victim, that harm or offensive contact is likely to occur.
Therefore, it can be said that a person who intends to cause apprehension of imminent harm in the mind of the victim, and succeeds in doing so, has committed the tort of assault.
Legal provisions
Chapter XVI talks about ‘Offences Affecting the Human Body’ by means of ‘Criminal Force and Assault.’
Section 351 – Assault
“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. Explanation — Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.”
Illustrations
- A shook his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z. A has committed an assault.
- A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has committed an assault upon Z.
- A takes up a stick, saying to Z, “I will give you a beating”. Here, though the words used by A could in no case amount to an assault, and though the mere gesture, unaccompanied by any other circumstances, might not amount to an assault, the gesture explained by the words may amount to an assault.
Section 352 – Punishment for assault or criminal force otherwise than on grave provocation.
This section talks about the act of assaulting or using criminal force upon any person, where such offence shall be punished with imprisonment for a term extending up to three months, or with fine of up to five hundred rupees, or both provided that the act wasn’t done in response to grave and sudden provocation by such person.
Such an exception will not apply if such grave and sudden provocation is sought or voluntarily provoked by the offender as an excuse to commit the offence, or if such provocation has been given by anything in obedience to the law, or by a public servant in the lawful exercise of his powers.
Another case where such exceptions may not apply is where such grave and sudden provocation was given in the lawful exercise of the right of private defence. Hence, whether the provocation was grave and sudden enough to mitigate the offence is a question of fact.
Illustrations
- ‘A’ swings his bat while aiming at Z, intending, or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z with the bat. A has committed an assault and shall be held liable for punishment under this section.
- ‘A’ loads his gun and aims at Z, intending or knowing it to be likely that he may thereby cause Z to believe that he is about to shoot the gun at Z. A has committed an assault upon Z and shall be held liable for punishment under this section.
Section 353 – Assault or criminal force to deter public servant from discharge of his duty.
This section talks about the act of assaulting or using criminal force upon any public servant, or to deter the execution of such public servant’s duty, where such offence shall be punished with imprisonment for a term extending up to two years, or with fine, or both.
Illustrations
- ‘A’ starts hurling verbal abuse at Z who is a traffic cop managing the intersection, because A was driving recklessly. A has not committed an assault as mere words do not amount to an assault.
- A, who is participating in a riot starts charging at Z who is police officer, intending or knowing it to be likely that he may thereby cause Z to believe that he is about to be put under physical hurt from A’s actions. A has committed an assault upon Z and shall be held liable for punishment under this section.
Section 354 – Assault of criminal force to woman with intent to outrage her modesty.
This section talks about the act of assaulting or using criminal force upon any woman, with the intent to outrage her modesty, where such offence shall be punished with imprisonment for a term which shall not be less than one year and may extend up to five years, or with fine, or both.
Illustration
- A makes a gesture of slapping towards Z who is a female subordinate of A, because Z was late to the work. A has committed an assault and shall be held liable for punishment under this section.
Section 354B – Assault or use of criminal force to woman with intent to disrobe.
This section talks about the act of assaulting or using criminal force upon any woman or abets with the intention of disrobing or compelling her to be naked, and where such offence shall be punished with imprisonment for a term which shall not be less than three years and may extend up to seven years, or with fine, or both.
Section 355 – Assault or criminal force with intent to dishonour person, otherwise than on grave provocation.
This section talks about the act of assaulting or using criminal force upon any person with the intent to dishonour such person, and where such offence shall be punished with imprisonment for a term which may extend up to two years, or with fine, or both.
Illustration
- A makes a gesture of slapping towards Z in a public gathering hosted by Z. A has committed an assault and shall be held liable for punishment under this section.
Section 356 – Assault or criminal force in attempt to commit theft of property carried by a person.
This section talks about the act of assaulting or using criminal force upon any person with the intent to commit theft which that person is then wearing or carrying, and where such offence shall be punished with imprisonment for a term which may extend up to two years, or with fine, or both.
Illustration
- A makes an attempt to steal Z’s watch. A has committed an assault to commit theft of property and shall be held liable for punishment under this section.
Section 357 – Assault or criminal force in attempt wrongfully to confine a person.
This section talks about the act of assaulting or using criminal force upon any person with the intent to confine that person, and where such offence shall be punished with imprisonment for a term which may extend up to one year, or with fine of up to one thousand rupees, or both.
Illustration
- A makes an attempt to lock Z in a bathroom Z was using. A has committed an assault in attempt wrongfully to confine Z and shall be held liable for punishment under this section.
Section 358 – Assault or criminal force on grave provocation.
This section talks about the act of assaulting or using criminal force upon any person acted upon the grave and sudden provocation given by that person, and where such offence shall be punished with simple imprisonment for a term which may extend up to one month, or with fine of up to two hundred rupees, or both.
Illustration
- A while having a verbal argument with Z, ends up provoking Z to which Z responds by clenching his fists at A in anger. Z has committed an assault on grave provocation by A, and shall be held liable for punishment under this section.
Exceptions to Assault
The exceptions to the act of committing assault or using criminal force have been provided some immunity in a limited scope of instances, where the omission of such act lacked the intention behind doing so. Hence, an absence of mens rea may absolve the assailant from such an offence. These exceptions are:
- Section 106 – Right of private defence against deadly assault when there is risk of harm to innocent person.
This section, under the head of ‘General Exceptions’ of IPC, talks about the act of exercising the right of private defence against an assault which may have caused a reasonable apprehension of death, and where such right cannot be efficiently exercised without risk or harm to an innocent person, and where such an act shall extend to the running of that risk, and shall not be held liable for the said act committed in private defence.
Illustration:
A makes a gesture of charging towards Z with a loaded gun, to which Z applies force to restrain A. Although ‘A’ has committed an assault, he shall not be held liable for owing to right of private defence exercised by Z.
- Section 352 – Punishment for assault or criminal force otherwise than on grave provocation.
This section talks about the act of assaulting or using criminal force upon any person, where such act was done in response to grave and sudden provocation by that person. Such act will not be exempted, if however, such act of provocation is sought or voluntarily provoked by the offender as an excuse for the offence. Under the ‘Explanations’ clause, certain instances have been provided where a person committing such an offence can be held liable, but only if such act(s) was committed by use of voluntary provocation in the first place by the offender.
- Section 358 – Assault or criminal force on grave provocation.
This section is subject to the same Explanation as that of Section 352, as mentioned above.
Case Laws
- Jadunandan Singh v. Emperor[4]
Held: The act of forcibly taking thumb-impression of a person on a blank piece of paper amounts to an offence of assault or use of criminal force which shall be punishable under the provisions of this Code.
- Ragu Pandurang Mahale v. State of Maharashtra[5]
Held: The very act of pulling a woman, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman. In such instance, having knowledge that such modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object.
- Padarath Tewari v. Dulhin Tapesha Kueri and others[6]
Held: It was held by the Allahabad High Court that “an internal medical examination of a lady, if not voluntarily submitted to by her, would amount to assault and battery.”
- Rupan Deol Bajaj and Ors. V. Kanwar Pal Singh Gill and Anr.[7]
Held: It was held that the act of slapping on the posterior of a woman in public gaze, with having regard to sequence of events that follow thereafter, may prima facie amount to outraging the modesty of such woman.
- State of U.P. v. Babul Nath[8]
Held: Since the victim was subjected to sexual assault and not merely indecent assault, the offence of sexual assault was to eclipse that of indecent assault and held applicable to the facts of the case. Also, the court held that merely because the injuries found on the private part of the victim could also be caused by an instrument, like a piece of glass, cannot lead to the conclusion that she was not raped, unless there is material to support such a conclusion.
Conclusion
In conclusion, ‘Assault’ is basically an act of sudden apprehension communicated from one person to another, about the harm that is about to be caused, where such assumption has been made by any reasonable person of ordinary intellect.
The party causing such apprehension in the mind of another shall be held liable under the provisions of this Code in normal circumstances, and where such act of apprehension may also be absolved from attracting the offence of an Assault, if such was done under the garb of the exceptions provided in the Code.
Hence, the question whether the provocation was grave and sudden enough to attract or mitigate such an offence should be decided by the courts itself.
- Black’s Law Dictionary 9th Ed. Pg. 130 ↑
- ibid ↑
- ibid ↑
- Jadunandan Singh v Emperor, AIR 1941 Pat 129 ↑
- Ragu Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677 ↑
- Padarath Tewari v. Dulhin Tapesha Kueri, (1931) SCC OnLine All 281 : AIR 1932 All 524 : 1932 All LJ 221 ↑
- Rupan Deol Bajaj and Ors. V. Kanwar Pal Singh Gill and Anr., (1995) 6 SCC 194 ↑
- State of U.P. v Babul Nath, (1994) 6 SCC 29 ↑