law of tort

This article is written by Yash Soni, a 2nd-semester LL.B student of CSJM University. In this article, he has tried to explain Assault, Battery, and Mayhem along with the distinction between them.

Introduction

Assault and Battery are two terms which are often used synonymously. In one’s mind, the term ‘assault’ means to physically hit or injure someone, but it is not so. They are two distinct terms. Where ‘Battery’ means any act of physical force upon another person, Whereas, ‘Assault’ means attempting battery or making one to believe that an act of battery is about to occur.

There is also another term which is related to Assault and Battery, which is known as ‘Mayhem’. ‘Mayhem’ is an offence against the person when an offender deprives his victim of a member of his body in order to make such a victim unable to defend himself. In this article, we’ll further discuss these terms in detail and will also try to differentiate between these terms.

Assault

According to Dr Winfield, Assault is an act of the suspect that causes within the mind of the complainant cheap apprehension of the infliction of a battery on him by the suspect. An Assault is an effort or supply to use force to another person’s body. Anyone, who advisedly brings any material object into a contract.

For Example- 1-to throw a stone or water upon an individual, 2- to tug a chair beneath him 3- whereby he falls to the ground 4-  strike any individual, all together in these cases, one person brings some material objects like a stone or a stick. These in contract with another person. In assault, the force isn’t applied however solely an effort is made.

Assault is outlined beneath in section 351 of Indian Penal Code that states that ‘ Whoever makes a gesture, or any preparation intending or knowing it to be doubtless that such gesture or preparation can cause a person to apprehend that who makes that gesture or preparation is on the brink to use criminal force thereto’, is claimed to commit an assault.

The assault should be intentional

A mere gesture not showing an intention to use force instantly isn’t an assault. The well-known case of Tuberville v. Savage [(1669) one Mad three ] is an example to show force destitute of intention to hold it out. The words, “Were it not assize (trial time) time I’d tell more of my mind”, after putting the hand on the sword, weren’t held to be assault. In this case, the speaker meant that it had been assize time and violence therein time was severely punished, so he couldn’t structure his mind to use the sword. In short, an assault is an intentional act of putting another person in reasonable fear of the appliance of force, eg- striking with a stick.    

Ingredients:

  • Making of any gesture or Preparation by an individual within the presence of another.
  • Intention or the probability that such gesture or preparation can cause the person to apprehend that the person creating it on the brink to use criminal force on him.

In the case of N.Arumgam v. A.V.M. Vilachanny 1994, the defendant pointed a loaded revolver at the litigant threatening to shoot him however before he may shoot, the litigant managed to flee. Held, it might not be an offence to commit murder, however, it might be an offence of assault beneath Section-351.

Battery

According to Salmond: ” Battery is that the application of force to the person of another with none lawful justification”.

The battery is an accomplished assault. The gesture to strike with a stick is an assault. The applying of even the slightest quantity of force is unjust. The battery wants to not be in the middle of bodily damage. Even to Slightly touch an individual without his consent or the other justification may be a battery.

It is to be noted that the battery is often without the consent of the person injured. If there’s his consent, it’ll not amount to a battery, so a beating suffered voluntarily isn’t unjust.

Ingredients:

  • Use of Force
  • Force should be intentional
  • Without lawful justification

Battery like all suits in trespass is unjust intrinsically i.e., while not proof of injury,i.e., physical injury. In case Swarup avatar v. Gabardhan Das AIR 1956, the suspect of sixteen years old age, abused the complainant on his face within the presence of a known crowd. The suspect committed assault in an outrageous manner and utter disrespect of his right. Through the act of the suspect failed due to a lot of physical injuries. It had been an insult to the plaintiff’s dignity. It was ordered that the exemplary harm of Rs.100/- awarded to the complainant was correct and in ordinary.

What is the differentiation between Assault and Battery?

To comprise A battery, a real agreement is significant, regardless of whether it’s a quick use of physical force with the help of some item. Be that as it may, in an ambush, the genuine substantial agreement isn’t essential and in this manner the demonstration of the respondent which makes a reasonable worry of the utilization of force against comprise attack, regardless of whether the force has not been utilized. For eg-to toss, a stone is an ambush and on the off chance that the stone falls upon him, at that point it turns into A battery. Additionally to shape a horse run towards an individual might be an attack however to frame the horse run over him is a battery.

Mayhem

Mayhem maybe a tort that causes severe injury to the victim in such a way he’s unable to defend himself from the tortfeasor. It’s closely intertwined with assault and battery. While assault refers to the threat of battery, and the battery is the physical usage of force against an individual, Mayhem deals with the disfigurement or loss of any part to physical injury caused by the tortfeasor. The disabling of an arm, hand, finger, leg, foot, or eye are examples of mayhem. To be guilty of the criminal offence, one shall dismember the victim or must assault him so recklessly on creating the danger of dismemberment albeit not meaning to cripple.

Several jurisdictions don’t consider the difference between mayhem and battery, but rather count mayhem as a sort of ‘aggravated battery’ as in developed countries like Japan.  

The U.S considers mayhem as a felony. The concept of Mayhem is often understood through subsequent cases –

  • In Case Fetter v. Beale [91 Eng. Rep. 1122] – The plaintiff had recovered damages from the defendant for the action of battery. Shortly thereafter, ‘Part of his skull came out of his head due to the said battery’, and therefore the plaintiff brought a subsequent action under mayhem. Through this case, the scope of mayhem was also expanded to the loss of the Skull.
  • In Case Garrett v. Taylor [(1676) 81 ER 726] – it had been held that a quarryman had an explanation for his action against the defendant which had caused the plaintiff’s customers to discontinue buying the quarried stone by threatening them with ‘mayhem’.

Difference Between Assault, Battery and Mayhem

Assault is an action that causes fear within the mind of the victim that an act of battery is close to taking place; Battery refers to the act of striking someone with physical force and no lawful justification. Mayhem refers to the act of crippling someone and rendering them defenceless. Assault generally refers to only intended to cause harm, whereas both in battery and mayhem, inflict physical injury occurs upon the victim. Assault takes before the crime of battery is committed and mayhem may be a severe sort of battery. These 3 torts are related to one another and form an integral part of criminal and tort law.

References

  • Dr J.N Pandey, Law of torts 2014
  • Prof. S.N Misra, Indian legal code ordinal Edition.
  • Bare Acts

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