An assault may be defined as-an unlawful laying of hands on another or an attempt to do a corporeal hurt to another, coupled with present ability and intention to do the act.
It should be noted that actual contract is not necessary in case of assault. But it is not every threat, when there is no actual personal! violence, that constitutes an assault, there must in case, be the means of carrying the threat into effect.
Arnould, C. J. defined “Assault” in a case as: “Any gestures calculated to excite in the party threatened a reasonable apprehension that the party threatening intends immeditely to offer violence, or, in the language of the Indian Penal Code, is, ‘about to use criminal force’ to
the personal threatened, constitute if coupled with a present ability to carry such intention into execution is an assault in law.”
According to Sir Frederick Pollock, “the essence of the wrong of assault is putting a man in present fear of violence, so that any act fitted to have that affect as a reasonable man may be an assault.
In other words, mere verbal threat is no assault, nor is a threat consisting of gestures, unless there be an immediate intention and present ability to carry it out. The intention as well as the act makes an assault. Therefore in Tubervil Vs. Savage where the defendant or drill as a soldier placing his hand upon his sword said to the plaintiff – “if it was not drill time I would not take such language from you.” It was hold to be not an assault since the language used in the circumstances of the case, did not show any attempt, real or apparent, to violence.
Assault is no offence under Section 351 of the Indian Penal Code.
On the basis of definitions given above the following are the essential ingredients of Assault.
(i) there must be some gesture or preparation which constituted a threat or force;
(ii) the gesture of preparation must be such as to cause a reasonable apprehension force: and
(iii) there must be present ostensible ability on the part of the defendant to carry out a threat into execution immediately.
Therefore, mere words do not amount to an assault. And hostile or unlawful intention is necessary to constitute an assault. Similarly mere passive obstruction is not an assault, as where a man by standing in a doorway prevent another from coming in.
Lastly, it should be noted that the threat must be unconditional. In a case of Birbal Khalifa the accused was registered as a bad character by the Police and a sub-inspector paid him a domiciliary visit in order to ascertain if he was at home. He called to the accused who came out, whereupon the former wished to take an impression of his thumb. The accused objected to it, but on the other hand, exending his hand, the accused inside the house and brought a lathi, saying that he would break the head of any one who asked for it. It was held that the threat being conditional did not amount to an assault.
Assault by a person of unsound mind
An assault by a person of unsound mind is to be taken as assault even if such person does the act without the knowledge that what he was doing was wrong.