CRIMINAL FORCE AND ASSAULT

 

 

    -By Preyoshi Bhattacharjee

    Criminal force and assault are very closely related. What is battery in English Law is criminal force in India. It is basically the use of force with an intention to cause injury and an apprehension of such injury will be inflicted is assault. Section 349 to 358 deals with criminal force and assault its punishment. The presence of force is necessary for the commitment of the offence of criminal force. So, Section 349 defines force. It states-

    A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling: Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described

    First. By his own bodily power.

    Secondly. By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.

    Thirdly. By inducing any animal to move, to change its motion, or to cease to move.

    The term ‘force’ is defined by this section. Force in itself is not any type of offence. So, basically force is the exertion of energy or strength producing a movement of change. Force can be used directly or with the help of any substance, or even with the help of an animal. Here the word ‘force’ which is used is used in reference of human beings only not inanimate objects. In the case of Sadashiv Mondal v. Emperor[[1]] the accused destroyed the fencing of the complainant by using force. The court held that since the force was used against an object and not against a person. Thus, he cannot be guilty of the offence of criminal force.

    Criminal Force



    Section 350 defines the offence of criminal force. It states that-
    Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

    Illustrations
    a) Z is riding in a chariot. A lashes Z's horses, and thereby causes them to quicken their pace. Here A has caused change of motion to Z by inducing the animals to change their motion. A has therefore used force to Z; and if A has done this without Z's consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, A has used criminal force to Z.
    b) Z is riding in a palanquin. A, intending to rob Z, seizes the pole and stops the palanquin. Here A has caused cessation of motion to Z, and he has done this by his own bodily power. A has therefore used force to Z; and as A has acted thus intentionally, without Z's consent, in order to the commission of an offence. A has used criminal force to Z.
    c) A intentionally pushes against Z in the street. Here A has by his own bodily power moved his own person so as to bring it into contact with Z. He has therefore intentionally used force to Z; and if he has done so without Z's consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, he has used criminal force to Z.

    Essentials

    Criminal force can be used directly as well as indirectly, with the use of any object or animal.the essential elements of the offence are-
    1. There must be use of force defined by Section 349
    2. Such force should be used intentionally
    3. The force must be used against a person and
    4. The force should have been used without the consent of the person on whom the force is inflicted.
    5. The use of force should be in:
    a) Pursuance of commission of an offence
    b) Intending to cause or knowing that it is likely to cause injury, fear or annoyance to the person to whom the force is used.

    Use Of Criminal Force



    Use of force is sine quo non of the offence of criminal force. Force is defined in Section 349 of IPC. So, the use of force should be in accordance to Section 349. Here, I have used the word criminal force, because the use of force could also be done for a positive thing like- pulling a person away from fire for saving his or her life. But for the use of criminal force the use of force should be with the intention of causing injury, fear or annoyance to the person on whom it is used. The intention here is the main factor.
    In the case of Bihari Lal v. Emperor[[2]] the Court held that if the house was locked and the accused broke in the house by breaking the lock there was no use of force on any person. But if the accused had struck a pot which a person was carrying and it was in contact of his body, then there is the use of criminal force.

    Another thing which is important is that the force should be used on a person and not an inanimate object[[3]]

    Illustration
    Z is bathing. ‘A’ pours into the bath water which he knows to be boiling. Here A intentionally by his own bodily power causes such motion in the boiling water as brings that water into contact with Z, or with other water so situated that such contact must affect Z's sense of feeling; A has therefore intentionally used force to Z; and if he has done this without Z's consent intending or knowing it to be likely that he may thereby cause injury, fear or annoyance to Z, A has used criminal force.

    If an attendant at bath, who from pure carelessness turns on the wrong tap and causes boiling water to fall on another, could not be convicted for the use of criminal force.[[4]]

    Consent



    For the commission of the offence of Criminal force, the force which is used should be without the consent of the person on whom it is used. If a person has given consent for the use of force, then the offence of use of criminal force would not have been committed. Section 90 of the IPC states that the consent given under any fear of injury or any misconception of facts will not be consent.

    Illustration
    A intentionally pulls up a Woman's veil. Here A intentionally uses force to her, and if he does so without her consent intending or knowing it to be likely that he may thereby injure, frighten or annoy her, he has used criminal force to her.

    Assault


    Assault could be the beginning or the first stage of many criminal acts. As it basically means the creation of fear in the mind of the victim that he will be harmed. Section 351 of IPC defines the offence of assault. It states that

    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) A shakes 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.
    (b) 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.

    Essentials
    The essential ingredients of assault are
    1. The accuse should make any gesture or preparation to use criminal force;
    2. Such gesture or preparation should be made in the presence of the person in respects of whom it is made;
    3. There should be an intention or knowledge on the part of the accused that such gesture or preparation would cause apprehension in the mind of the victim that criminal force would be used against him, and
    4. Such gesture or preparation has actually caused apprehension in the mind of the victim, of use of criminal force against him.


    Gesture Or Preparation

    According to this section mere words cannot amount to assault. The words should be coupled with such gestures or preparation which creates an apprehension in the mind of the victim that he or she shall be subjected to criminal force. In the case of Stephens v. Myres[[5]] both plaintiff and defendant sat at the same table. They were in a meeting and a discussion was going on which took an ugly turn. The defendant held the chairman’s hand and clenched his fist saying that he will pull the chairman and throw him out of the room. He was held liable for assault.
    The following have been held to be instance of assault[[6]]
    1. Pointing of a gun, whether loaded or unloaded, at a person at a short distance away is bound to cause apprehension of violence in the mind of the person at whom the gun is aimed at. Hence, it will amount to assault.
    2. Fetching a sword and advancing with it towards the victim
    3. Lifting one’s lota or lathi
    4. Throwing brick into another’s house
    5. Advancing with a threatening attitude to strike blows.

    Cause Apprehension Of Criminal Force


    One important thing for assault is that the victim should apprehend danger from the accused. If the victim does not apprehend harm, the offence of assault is not committed.
    Illustration ‘A’ points an unloaded gun at ‘Z’ and ‘Z’ knows that the gun is unloaded. ‘A’ has not committed the offence of assault. But in the same situation if ‘Z’ was not aware that the gun was unloaded then, ‘A’ would be guilty of assault.
    He (accused) should have the ability to give effect to his purpose and if he is not capable of doing so, then any gesture or preparation by him would not amount to assault.

    Illustration
    ‘A’ standing in the compartment of the running train shows his fist to ‘B’ who is on the platform. The act of ‘A’ would not amount to assault.
    The most important test that will lead an act to constitute the offence of assault is whether or not the apprehension of harm was caused in the mind of the victim. The words or action should not be regarding future. A future threat will not amount to assault.

    Punishment For Assault And Criminal Force



    Section 352 states whoever assaults or uses criminal force to any person without a sudden provocation shall be punished with imprisonment which may extend to three months or with a fine which may extend to 500 rupees or with both.

    The explanation to this section also provides the cases where provocation will also not mitigate the punishment. If the provocation is sought or voluntarily, or if the provocation is given by anything done in obedience to the law, or by a public servant, in the lawful exercise of the powers of such public servant, or if the provocation is given by anything done in the lawful exercise of the right of private defence. Whether the provocation was grave and sudden enough to mitigate the offence is a question of fact.

    Section 358 states whoever assaults or uses criminal force to any person on grave and sudden provocation given by that person, shall be punished with an imprisonment which may extend upto one month, or with a fine which may extend upto two hundred rupees or with both.

    Other forms of assault or criminal force


    Assault or criminal force to deter public servant

    Section 353 states that whoever assaults or uses criminal force to any public servant who his executing his duty to deter him from performing his duty, shall be punished with an imprisonment which may extend upto two years or with fine or both.
    The ingredients of this offence are-
    1. The victim must be a public servant;
    2. When assaulted, he must have been acting:
    a) In execution of his official duty
    b) And the assault was intended to deter him from discharging his duty; or
    c) It was in consequence of anything done or attempted to be done by him in the discharge of his duty.

    In the case of Chandrika Sao v. State of Bihar[[7]] an assistant superintendant of commercial taxes paid a surprise visit to the shop of the accused to inspect the books of account. He found two sets of account books and he started looking at them. Suddenly the accused snatched away both the books from him. The accused was charged under Section 353 of IPC. Because his snatching of the book gave a jerk to the hand of the officer and moreover, it affected his feeling of being a public servant.

    Assault Or Criminal Force To Woman To Outrage Her Modesty


    Section 354 states that whoever assaults or uses criminal force against a woman intending or knowing that it will outrage the modesty of the woman, shall be punished with an imprisonment which may extend to five years and not less than one year with a fine.

    So, here the prosecution needs to prove two things that is, firstly, there was an assault or use of criminal force. Secondly, the assault or use of criminal force was done to outrage the modesty of the women intentionally. In the case of State of Punjab v. Major Singh[[8]] the accused walked into the room of a girl child who was 7 and a half months old and he after switching off the lights stripped the girl below the waist and injured her vagina by fingering causing it to tear by 3/4th inch. It was argued here that a girl child so small does not have a modesty which could be outraged. But the Supreme Court held that the major was liable under Section 354 as a woman by her birth poses modesty which is capable of being outraged.

    Assault Or Criminal Force To Disrobe A Woman


    Section 354B provides for a punishment by imprisonment which may extend to a term of seven years with a fine for any person who tries to disrobe a woman by assaulting or using a criminal force against her. It was added by the Criminal Law (amendment) act of 2013.

    Assault With An Intention To Dishonour A Person


    Section 355 provides for a punishment by means of imprisonment which may extend to two years or with fine or both to a person who assaults or uses criminal force against another person without a grave and sudden provocation to dishonor that person.

    Assault In Attempting Theft


    Section 356 states that a person who assaults or uses criminal force against another in attempting to commit theft of the property which a person is carrying or wearing shall be punished with an imprisonment which may extend upto two years or with fine or with both.

    Assault In Attempting Wrongful Confinement


    Section 357 provides for a punishment of imprisonment which may extend upto one year or with a fine which may extend upto 1000 rupees or with both to any person who assaults or uses criminal force against another person in order to wrongfully confine him.

    Conclusion


    Force is the basic element of both of these offences of criminal force or assault. On is the actual application of force and another is the creation of apprehension that such a force will be used. So, all of these are related to each other with small but clear distinctions.




    References

    1) AIR 1915 Cal 131
    2) AIR 1934 Lah 454
    3) Sadashiv Mondal v. Emperor; AIR 1915 Cal 131
    4) See John D Mayne, The Criminal Law of India, Fourth Edition, Higginbotham, Madras, 1869, p 559
    5) (1830) 4Cand P: 172 ER 735
    6) See, Mahadeo Pandey v. Emperor AIR 1932 ALL 322; Kwaku Mensah v. King AIR 1946 PC 20, (1947) Cr Lj 569 (PC)
    7) AIR 1967 SC 170, (1967) Cr Lj 261 (SC)
    8) AIR 1967 SC 63, 1967 Cr Lj 1 (SC)






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