Tort is a civil wrong as it has been accepted by the modern scholars and social scientists both in India and abroad. Here we shall try to understand how Trespass is one of the torts which have partly survived in the ever changing society. Its principle was that any direct invasion of a protected interest from a positive act was actionable subject to justification.

If the invasion was indirect though foreseeable or if the invasion was from an omission as distinguished from a positive act, there could be no liability in trespass though the wrong doer might have been liable in some other form of action. If the invasion is unintended, though direct and resulting from a positive act, there will still be no liability if the conduct of the defendant was reasonable, or even if it was unreasonable, if the invasion was an unreasonable consequence.

The examples help us to understand the above mentioned areas of torts. In Fowler v Lanning (1959) 1BQ 426, Diplock, J states that "trespass to the person does not lie if claimant has been injured, even though the direct consequences of the defendant act, was caused unintentionally without negligence on the defendant's part"

In another case, Letang v Cooper (1965) 1 BQ 232, Lord Denning , MR in deciding against the plaintiff expressed his approval of fowler v Lanning, and went one step further in holding that when the injury was not inflicted intentionally but negligently, the only cause of action is negligence and not trespass. The unintended invasions have thus been completely eclipsed by the tort of negligence and what now under trespass are intended invasions. Here the rules of trespass remain unchanged.

There are two important rules:

1. That it is for the defendant to plead and prove justification and not for the plaintiff to show that the defendant's conduct was unreasonable; and
2. That damage is not an essential element and need not be proved by the plaintiff. However we are confined here to discuss about Assault and Battery so far as the intentional trespass to the person is concerned.

An Assault is an attempt or a threat to do a corporeal hurt to another, coupled with an apparent present ability and intention to do the act. It means that invariably an assault has to have an attempt and the ability to hurt or harm to another person. Assault and Battery, both are related but distinct crimes, battery being the unlawful application of physical force to another and Assault being an attempt to commit battery or an act that causes another reasonably to fear an imminent Battery.

These concepts are found in most legal systems in the world to protect the individuals from rude and undesired physical contract or force and from the fear or threat thereof. No minimum degree of force is necessary to constitute a Battery. A mere touch is sufficient. And force need be applied directly. It is Battery if one strikes a person's cane or horse, administers poison or drugs, or communicates a disease.

An accident or ordinary negligence that results in injury is not criminally punishable as Battery unless it occurred during the commission of another unlawful offence. Generally one does not commit Battery unless one acts with intent to have or with gross criminal negligence involving a high degree of carelessness. Even then such action may be justified if it is for the purpose of the defense of others or of property, or if it is in self defense. Reasonable force may be used in the performance of duty, as for example, by a police officer without constituting battery.

Assault is a crime of attempt, the purpose of the law being to deter a possible Battery by punishing conduct that comes dangerously close to achieving a Battery. As with most crimes of attempts, a clear line could not be drawn between a criminal attempt and conduct that is merely preparatory to an assault. There must be intent to harm, but the intent is not sufficient if it produces the mere possibility of harm or the threat of battery in the distant future.

Rather, the intent must be evidenced by an imminent danger, some overt acts that threaten Battery. Thus mere words or intentions alone do not constitute assault. Some countries like England and America, the civil- law countries have defined certain types of assaults (such as assault with a deadly weapon or with the intent to commit robbery or rape) as "aggravated Assaults". This resulting Battery is also called aggravated one and both crimes are assigned higher penalties than regular assault and Battery.

A Battery is the intentional and direct application of any physical force to the person of another. It is the actual striking of another person, or touching him in a rude, angry, revengeful, or insolent manner. In Cole v turner (1704) 6 Mad 149, Halt, CJ declared-that the least touching in anger is Battery. If two or more meet in a narrow passage and without any violence or design of harm, the one touches the other gently, it will be no Battery. If any of them uses violence against the other, to force his way in a rude inordinate manner, it will be a Battery or any struggle about the passage to that degree as may do hurt will be a Battery.

In Wainwright v Home office (2003) 4 All ER 969, Robert GOFF,LJ redefined battery as meaning an intentional physical contact which was not generally acceptable in the ordinary conduct of daily life. This definition was accepted by the House of Lords. As mentioned above that a battery includes an assault and it is mainly distinguishable from an assault in the fact that physical contact is necessary to accomplish it.

In Jai Bhagwan v Suman Devi, (2011) 185 DLT29, it is held that in order to establish the tort of Batter, the plaintiff must however prove that the force used was without lawful justification. Thus to throw water at a person is an assault; if any drops fall upon him it is a Battery. So too, of riding a horse at a person is an assault, riding it against him is a Battery. Pulling away a chair, as a practical joke, from one who is about to sit on it is probably an assault until he reaches the floor, for while falling he reasonably expects that the withdrawal of the chair will result in harm to him.

When he comes in contact with the floor, it is Battery as stated in Blunt v Beaumont (1835) 2 Cr M & R412. But every laying on of hands is not a Battery. The party's intention must be considered. Touching a person, for instance, sa as merely to call his attention is no Battery. A friendly clap on the back on the back of a person may be excused on the ground of implied consent, but not the hostile or rude hand.

In Stephens v Myers (1830) 4 C & P349, the plaintiff was the chairman of a parish meeting. The defendant having been very vociferous, a motion was and carried by a large majority that we should be turned out. Upon this the defendant said he would rather pull the chairman out of the chair than he turned out of the room, and immediately advanced with his fist clenched towards him; he was thereupon stopped by the church-warden, who sat next but one to the chairman, at a time when he was not near enough for any blow he might have meditated to reach the plaintiff; but the witness said that it seemed to them that he was advancing with an intention to strike the chairman. The jury found for the plaintiff with one shilling damages. The CJ, Tindal, remarked that "I think it amounts to an assault in law"

In another case, Read v Coker, 138 ER1437, the defendant told the plaintiff to leave the premises in occupation of plaintiff. When the plaintiff refused, the defendant collected some of his workmen who mustered round the plaintiff, tucking up their sleeves and aprons and threatened to break the plaintiff's neck if he did not leave. The plaintiff brought an action of trespass for assault. In holding in favour of the plaintiff, the CJ, Jervis said "The facts here clearly showed that the defendant was guilty of assault. There was a threat of violence exhibiting an intention to assault, and a present ability to carry in the threat into execution'.

In contrast, in Bavisetti Venkata Surya Rao v Nandipati Muttayya, AIR 1964 AP 382, the defendant who was a village Munsi threatened to distain the earrings which the plaintiff was wearing for recovery of land revenue on behalf of the plaintiff. The village goldsmith was called on which someone paid the land revenue on behalf of the plaintiff and the defendant left the place quietly. As the defendant said nothing after arrival of the goldsmith, it was held that it could not be said that the plaintiff was put in fear of immediate or instant violence and, therefore, the defendant could not be made liable for assault.

If the defendant intended to assault, in other words if he had the capacity to understand the nature of his act, and he struck the plaintiff, he would be liable for assault and Battery even if he did not know, because of mental disease that what he has doing was wrong. But if the mental disease is so severe that the defendant's act of striking the plaintiff was not a voluntary act at all, he would not be liable.

A civil action lies for an assault, and criminal proceedings may also be taken against the wrong doer. The fact that the wrong doer has been fined by a criminal court for assault is no bar to a civil action against him for damages. The previous conviction of the wrong doer in a criminal court is no evidence of assault. The factum of the assault must be tried in a civil court, which is not bound by conviction or acquittal in criminal proceedings. A plea of guilty in a criminal court may, but a verdict of conviction, cannot be considered in evidence in a civil court.

Difference between Assault and Battery:

Assault:

1. Every Assault does not include Battery.
2. Assault is the attempt to commit Battery.
3. This is done to threaten a person.
4. Here, physical contact is not necessary.
5. For an Assault a mere apprehension of danger is sufficient.
    

Battery:

1. Every Battery includes Assault. Battery is an aggravate form of assault.
2. Battery includes intentional application of force to another person without any lawful justification.
3. This is done to cause harm to a person.
4. In Battery there must be a physical contact.
5. For Battery there must be an actual application of physical force.