“TRESPASS TO PERSON”
1. INTRIDUCTION
Assault
and Battery are kinds of trespass to person. Both of these torts are actionable
per se without the proof of the damage. Assault is also a criminal offence
punishable under Sec.351 PPC and battery is also punishable under PPC.
2. DEFINITION
OF TRESPASS TO PERSON
Ratan Lal
Wrongs
affecting safety and freedom of the person are often termed as trespass to person.
3. KINDS
OF TRESPASS TO PERSON
Following
are the kinds of trespass to person.
i.
Assault
ii.
Battery
iii.
False imprisonment
4. DEFINITION
OF ASSAULT
It is
unlawful laying of hands by one person upon the body of another person with an
intention and apparent ability to do violence to the assaulted person.
Winfield:
Assault is an
act of defendant which causes to the plaintiff reasonable apprehension of the
infliction of battery on him by the defendant.
ILLUSTRATION:
‘A’
pointing at ‘B’ unloaded pistol would create fear and apprehension in ‘B’ of
injury to his body; it would be an assault by ‘A’ against ‘B’.
5. ESSENTIAL
ELEMENT OF ASSAULT
Following
are essentials elements of Assault:
I. SOME
PREPARAION OF GESTURE CONSTITUTING A
THREAT OF FORCE
There should be
some preparation of gesture constituting a threat of force.
II. A
REASONABLE APPREHENSION OF THE USE OF FORCE
There
should be reasonable apprehension of the infliction of force. There is no
assault when fear of the use of forces absent.
III. DEFENDANT’S
ABILITY TO CARRY OUT THREAT
The
plaintiff must have reasonable belief that the defendant has ability or
capability to carry his threat.
6. DEFINITION
OF BATTERY
Battery
is the intentional use of force to another person without legal justification.
7. ESSENTIALS
ELEMENTS OF BATTERY
I.
USE
OF FORCE
There should be use of force by one person
against the other.
II.
INTENTION
The
use of force by one person against another must be intentional.
III.WITHOUT
LEGAL JUSTIFICATION
The use of force
must be without legal justification.
8. SIMILARITIES
OF ASSAULT AND BATTERY
i.
Both
assault and battery are tort as well as crime.
ii.
Both
belong to trespass to person.
iii. Both are actionable per se.
9. DIFFERENCE
BETWEEN ASSAULT AND BATTERY
i. AS
TOUSE OF FORCE
(a) There
is no use of force in assault.
(b) In
battery there must be use of force.
ii. AS TO
APPREHENSION
(c) There is apprehension of the use of force
in assault
(d) There is
no apprehension of the use of force in battery
iii. AS TO
NATURE
(e) Assault
does not include battery.
(f) Battery
includes assault.
10. DEFENCES
IN AN ACTION UNDER ASSAULT AND BATTERY
An
action for assault and battery can be defendant by any of the following ground.
i.
SELF
DEFENCE:-
Assault
or battery was committed by the defendant in exercise of his right of defence
of property or person.
ii.
PARENTAL
OR QUASI PARENTAL AUTHORITY
If it
is done in exercise of parental or quasi parental authority. Provided that the
force is not unreasonable.
iii. EXPULSION OF TRESPASSER
Assault
or battery was committed against the plaintiff in exercise of extra judicial
remedy of expulsion of the plaintiff who was trespassing in the building of the
plaintiff.
iv. PRESERVATION OF PUBLIC PEACE
Assault
or battery was committed for preservation of
public peace at public place which was disturbed by the plaintiff.
v.
CONSENT
Assault
or battery was committed with the consent of the plaintiff.
vi. LEGAL PROCESS
Assault
or battery was committed against the plaintiff who resized the service upon him
of the
process
issued by the court of law.
vii. INEVITABLE ACCIDENT
Inevitable
accident is also a defence but if an act is done in negligent manner inevitable
can not be pleaded.
11.CONCLUSION
To conclude
that I can say that, Assault and Battery are tort as well as crime. Assault is
a sudden attack and battery is unlawful touching of another person without
lawful justification. Both are actionable per se.
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