Criminal Force & Assault: Meaning, Essentials, Explanation & Difference

This article “Criminal Force And Assault” deals with the meaning, essentials, explanation, difference between Force, Criminal Force and Assault, Aggravated Forms of Assault or Use of Criminal Force and their Specific Sections under Indian Penal Code. Further, the difference between sexual assault, rape and attempt to rape is also explained briefly. The assault having several aggravated forms in the penal code is also included in this article explaining them in brief and specifying the relevant sections.

Besides, the focus is also on the explanation of how and why the sexual assault is not a trivial issue as under section 95 IPC. The Penal code deals with offences like criminal force and assault in its category “Of Criminal Force and Assault” and their punishment forthwith.^[1]

Meaning: What is Force?

Before talking about criminal force, we need to understand what force is? The term force has been explained in section 349.^[2]

“349 Force—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 section merely says what is a force but did not consider it as an offence. Hence, it is better understood with the later section, which says what is a criminal force which is again useful for understanding what is assault. The section explains force with respect not only to a person but substance, things that the other person is in contact with. Here, two things are essential i.e., first, there must be motion caused or change in motion or cessation of motion externally and second, the above must be caused to another person either directly or through things or substances he/she is in contact with.

If the motion is caused or change in motion is caused, or cessation of motion is caused to the external object or substance or thing which the other person possesses or wears or carries or is in contact, does not affect that person, then it is not force. It will not be considered as use of force.^[3]

The court of law is in a better position to study the facts and circumstances, to determine what can be called as use of force and what is not the use of force. Like in the case of Chandrika Sao v. State of Bihar, (AIR 1967 SC 170), the lower court rejected the argument that is merely snatching the book away from the hands of the official, which he was in the official’s possession at that time, was not a use of force. The supreme court observed otherwise, saying that the snatching of books was capable of fulfilling the essence of section 349. The book which was in possession of the official was caused to have a motion or change in motion by mere snatching it; this affects a sensation of feeling to the official’s hands. Hence, it is considered as use of force by the accused.^[4]

I. Criminal Force

The term criminal force has been defined in section 350.^[5] And it uses the meaning of word force which is given in section 349.

“350 Criminal force—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

1. Z is sitting in a moored boat on a river. A unfastens the moorings, and thus intentionally causes the boat to drift down the stream. Here A intentionally causes motion to Z, and he does this by disposing substances in such a manner that the motion is produced without any other action on any person’s part. A has therefore intentionally used force to Z; and if he has done so without Z’s consent, in order to the committing of any offence, or intending or knowing it to be likely that this use of force will cause injury, fear or annoyance to Z, A has used criminal force to Z.
2. 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.
3. 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.
4. 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.
5. A throws a stone, intending or knowing it to be likely that the stone will be thus brought into contact with Z, or with Z’s clothes, or with something carried by Z, or that it will strike water and dash up the water against Z’s clothes or something carried by Z. Here, if the throwing of the stone produce the effect of causing any substance to come into contact with Z, or Z’s clothes, A has used force to Z, and if he did so without Z’s consent, intending thereby to injure, frighten or annoy Z, he has used criminal force to Z.
6. 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.
7. 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.
8. A incites a dog to spring upon Z, without Z’s consent. Here, if A intends to cause injury, fear or annoyance to Z, he uses criminal force to Z”

The above section gives us what is criminal force and the illustrations to explain the offence better. These illustrations are a combination of scenarios where there is motion caused or change in motion or in few cessations of motion caused. Further, these illustrations better explain the clauses as provided in section 349, which gives us manners in which force can be used.

Essentials of Criminal Force

The essentials of force are combined with that of the criminal force and show us what exact need to be satisfied to constitute criminal force.

1. There must be a use of force.
2. Force should be used intentionally
3. Force used should be without consent
4. The force used should satisfy either of it – a. the use of force must be “in pursuance to the commission of an offence” or; b. the use of force must be “intending to cause or knowing that it is likely to cause injury, fear or annoyance to the person to whom the force is used”

When force becomes Criminal Force: Which one is punishable?

The above section says the use of force to be mandatory, then does it mean force is punishable? No, mere force is not punishable under law. Section 349 has just defined the force, but it is not treated as a negative act or as an offence. This means force can be used in a positive sense. For example, if one uses force to protect a person from falling down or protect from an injury, it is not an offence but still satisfies the essentials of section 349.

Hence, the criminal force requires more than what is use of force. They are- firstly it must be without consent and secondly it is to commit an offence or intention to or knowledge that such act of using force causes an injury or fear or annoyance.

• Consent

The meaning of consent is provided in section 90 of the penal code.^[6] The act of using force must be without the consent of the person to whom such force is being used. There is a difference between “without consent” and “against the will”. In the former, there is physical and active opposition whereas the latter has mental and active opposition. Thus, the law requires the accused to be without consent.^[7]

• Intentional Use of Force

The word “intentional” in connection with “use of force” shows that the ambit of criminal force completely excludes the involuntary or unintentional or negligent acts or use of force. For example, when a person negligently or carelessly pulls the veil of a woman, even though without consent as it was not an intentional act of force, neither is it for committing an offence nor it is caused by an intention or knowledge to cause injury or fear or annoyance. Thus, the act cannot be constituted as a criminal force.

Presence of Person

To prove that there was the use of force or criminal force, the presence of the person against whom the force is alleged to be used is mandatory.^[8] Thus, the law does not consider an act as a force when the thief you broke into a house whose owner is not present at home. There is no external force used upon any person. The theft is done without any use of force. Hence, in criminal force too physical presence of a person, against whom the criminal force is alleged to be used is required.^[9]

WHAT IF THE CRIMINAL FORCE DOES NOT CAUSE INTENDED/KNOWN RESULT:

The act of criminal force is just intended to or known to cause an injury or fear or annoyance to the person against whom the force is used. Then, does it mean it is not a criminal force if the injury is not caused? Or does it mean merely force against objects and not a person?

The force even though it does not cause any injury, it is constituted as a criminal force as it is executed with a mental element and is externally acted to achieve the results. And the mere fact that the result was somehow escaped or frustrated by some act will be irrelevant. For example, the accused tried to beat a person with a stick and raises it with force against the victim, but the victim escapes and frustrates the achievement of the intended result, it will remain a criminal force. It will not be called as a mere force against an object or thing as it is frustrated from resulting in the intended injury. Thus, the cause of injury or hurt is not material when other essentials of section 350 satisfy, only the intention or knowledge is enough.

II. Assault

Assault is defined under section 351.^[10] To understand what is assault, one must be well versed with what is force and criminal force

351 Assault—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

1. 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.
2. 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
3. A takes up a stick, saying to Z, “I will give you a beating”. Here, though the words used by A could in no case amount to an assault, and though the mere gesture, unaccompanied by any other circumstances, might not amount to an assault, the gesture explained by the words may amount to an assault”.

Essentials of Assault

The following are the essential elements to prove an assault has been committed-

1. There must be “a gesture or preparation made to use criminal force”.
2. That “gesture or preparation must be made in the presence of person”, against whom it is being made.
3. There must be “an intention or knowledge that such gesture or preparation would cause apprehension in the mind of the victim that criminal force would be used against him.
4. Finally, the actual cause of apprehension of use of criminal force against him, in the mind of the victim.

What is Gesture or Preparation?

The section makes it clear that mere words are not enough to constitute an assault; there must be some gesture or preparation for the use of criminal force, then only it will amount to an assault.

Some illustrations in the section itself help us to understand what a gesture or preparation can be. Like shaking fist, which shows the preparation to strike someone.^[11] And lifting a stick with a warning sign shows that the accused is ready to hit the victim with that stick.^[12] Unloosening a ferocious dog, to cause that dog to attack someone becomes a gesture to use criminal force against the victim.^[13]

The apprehension of use of Criminal Force: Assault?

The apprehension of criminal force is itself an essential of assault but is also associated with two main requirements to complete the assault. Firstly, the “gesture or preparation” made against the victim must be done “in the victim’s presence” which is close enough to create an apprehension in the mind of the victim.

For example, if an accused pointed out a gun, against the victim who knows that he is far beyond the reach of the gunshot, is not an assault. As the person’s presence is too remote to cause an apprehension of the use of criminal force.

Secondly, as said earlier, the “apprehension of use of criminal force must be actually caused”. Thus, the gesture or preparation must be such which would have an effect of such apprehension, and it must occur in the “present and immediate state”, not at some later point. And further, if there are mere threats, then that would not be causing an apprehension. Those threats would not constitute an assault. For example, a neighbour threatening to beat the people, for throwing balls at their courtyard while playing, will not amount to an assault.

Punishment for Offences: Assault or Criminal Force

The punishment for assault or criminal force is divided into two categories in the penal code of India, i.e., without grave provocation and with grave provocation. In section 352, the law describes the “punishment for assault or criminal force otherwise than on grave provocation”^[14] and section 358 describes the punishment for “assault or criminal force on grave provocation”^[15].

Section 352 itself clears it out with an explanation that grave and sudden provocation is not used as a mitigating factor if the offender had sought to or voluntarily provoked. People acting lawfully and people exercising private defence, if provoked will not be a mitigating factor. Such provocation, whether capable of mitigating, is dependent upon the question of fact.^[16]

III. Difference between Assault, Criminal Force and Hurt

All three terms are defined separately and are different. They are the stages leading to the commission of a crime and might affect differently. Assault is a preparatory act which causes apprehension of use of criminal force but may not require the actual use of criminal force. It creates a fear in the minds of the victim, of violence against him, as intended by the accused.

The moment criminal force is used, there act is beyond assault as it causes motion or change in motion or cessation of motion, without consent. Thus, the motion if further leads to any pain or bodily injury such result is known as hurt as defined under section 323 of penal code^[17]. Hence the offence is termed as hurt when the injury or pain is caused.^[18]

IV. Aggravated forms of Assault or Criminal Force

1. Assault of Criminal Force to deter the public servant

Section 353 deals with the offence of “assault or criminal force to deter a public servant from discharging his duty”.^[19] Because the work given to the public servant is often obstructed and vulnerable to risks. The law, therefore, urges to protect the public servant from such assault or criminal force, and he is entitled to be protected while discharging his duties.^[20] Thus, when a person is not discharging his lawful duty, he is not entitled to any kind of protection under this section.^[21] Further, the accused may not be charged under this section if he is merely resisting.^[22]

A lawful public servant who is acting on the orders of his senior which are illegal, he is not protected by this section, even though he is innocent about the illegality of the orders.^[23] A public servant who is discharging his functions must not be merely acting in authority, but be deterred, then only the accused will be liable under this section.^[24]

2. Assault or criminal force to woman outraging her modesty

Section 354 deals with the offence of “assault or criminal force to woman with intent to outrage her modesty”.^[25] This section requires the accused not just assault or use criminal force but to do so with either intention or knowledge to outrage her modesty.^[26] The law has not defined what they meant by outraging the modesty of a woman. It is considered as ‘womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct; reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions’.^[27] But again it depends upon the facts and circumstances of each case, for not only to determine the charge on the accused but also what was the victim’s role. So that the act done was to be judged solely as an intentional act of the accused.^[28]

It requires clear evidence showing the accused had the intention or knowledge to outrage the modesty of the woman.^[29] In the case of State of Punjab v. Major Singh AIR 1967 SC 63, the court decided that even though the victim is a minor and is so tender to feel womanly modesty, and she is considered to be outraged at her modesty when the accused had done the act of unnatural lust. Although the reaction of the woman is material but is not considered to be decisive, the act done was the act against a particular sex, and she possesses the modesty the moment she was born. Modesty has nothing to do with her age.^[30]

The ultimate test for determining whether the act of outraging is assault or just use of criminal force depends upon the degree to which the decency of a woman is shocked. Thus, when an incident is “capable of shocking the decency of a woman”, then he is liable under section 354.^[31] As there is a difference between outrage being assault and use of criminal force. There must be no penile-penetration as that would again be an offence of rape, not sexual assault.^[32] Further, the difference between sexual assault and attempt to rape would be that the accused must be at the verge of penetrating, thus stopped.^[33]

The modesty of a woman: Not a Trivial Act

In the famous case of Rupan Deol Bajaj v. Kanwar Pal Singh Gill (AIR 1996 SC 309), the victim who is an IAS officer belonging to Punjab cadre was sexually assaulted by the DGP of Punjab, KPS Gill. in the party gathering reputed officials, the accused had misbehaved with the victim, later when she walking away had slapped on her posterior. When she filed an FIR, it was quashed. The high court too decided it to be a trivial matter under section 95 of IPC. But the supreme court said quashing of the FIR was illegal and no matter is trivial when it is related to outraging the modesty of a woman. Hence, sexual assault is not considered as a trivial matter.^[34]

Henceforth the sexual assault acts have never been considered as trivial matters. There must be credible evidence given by the prosecutrix as not all cases are based on the presumption that “no woman would put her reputation and character at stake” cannot be applied universally. Hence, the courts are asked to rely on the facts to find out such things.^[35] Further, the accused cannot be convicted for outraging the modesty of a woman who has consented for such actions.^[36]

3. Assault or Criminal Force with intent to disrobe a woman

Section 354B deals with the offence of “assault or use of criminal force to a woman with intent to disrobe”.^[37] It was added in the amendment of 2013 and was made more severe.^[38] It is an act of disrobing a woman against her will and is much graver than just outraging the modesty of a woman.^[39]

4. Assault or Criminal Force with intent to dishonour a person

Section 355 of IPC deals with the offence of “assault or use of criminal force with intent to dishonour a person, otherwise than on grave provocation”.^[40] This section does not cover the suppression made by seniors to its juniors as it is just to have supremacy and no intention to insult or dishonour. And the test of intention may be dependent upon how gross the insult was.^[41]

5. Assault or Criminal Force in attempting theft

Section 356 deals with “assault or criminal force in attempting to commit theft of property carried by a person”.^[42] The act of assaulting or using criminal force is punishable under this section if it is done during an attempt to commit theft of a property which the victim is wearing or carrying. Thus, the commission of theft will make this section inapplicable.

6. Assault or criminal force in attempting wrongful confinement

Section 357 deals with the “assault or criminal force in attempt wrongfully to confine a person”.^[43] The section focuses on the assaults or use of criminal force while attempting to confine a person wrongfully.

Specific Offences: Affecting Decency of a Woman

The section 354A, 354C and 354D are specifically added as many cases were affecting the decency of a woman. All these were added through the criminal amendment act 2013.^[44]

1. Sexual Harassment

Section 354A deals with “sexual harassment and punishment for sexual harassment” in the category of criminal force and assault.^[45] The section requires the essentials to be proved to hold a person liable under this section. Further, the harassment may be done in any manner as specified within (i) to (iv)^[46], and punishment is suggested accordingly in the section itself for each manner of sexual harassment.^[47]

2. Voyeurism

The section 354C deals with “Voyeurism”.^[48] It tries to secure the decency of a woman when she is engaged in her “private act” and expects no one to breach her privacy.^[49] Further, even though the victim had consented for pictures, the accused if disseminated those to others, i.e., third party, will be liable under this section for such “dissemination”.^[50]

3. Stalking

Section 354D deals with the offence of “Stalking”^[51]. It states that any man who satisfies any of the clauses under section 354D(1) is said to have committed the offence of stalking. But the proviso of the section gives us an exception to such offence. That is if a man stalks due to any of the reasons provided in the proviso, then he is not criminally liable under this section.^[52] The punishment for this is provided in section 354D itself and becomes severe if he is convicted second time too.^[53]

Although these sections are aimed at protecting women but are added to the penal code to protect people who face such offensive incidents and save public morality and promote decency amongst people and society.

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^[1] Indian Penal Code 1861, ss 349-358

^[2] Indian Penal Code 1861, s 349

^[3] Ramakant Rajaram v. Manuel Fernandes AIR 1969 Goa 45

^[4] Chandrika Sao v. State of Bihar AIR 1967 SC 170

^[5] Indian Penal Code 1861, s 350

^[6] Indian Penal Code 1861, s 90

^[7] John D Mayne, The Criminal Law of India (4th edn, Higginbotham 1896)

^[8] Nani Gopal Das v. Bhima Charan Rakshit AIR 1956 Cal 32

^[9] Bihari Lal v. Emperor AIR 1934 Lah 454

^[10] Indian Penal Code 1861, s 351

^[11] Indian Penal Code 1861, s 351, illustration (a)

^[12] Indian Penal Code 1861, s 351, illustration (c)

^[13] Indian Penal Code 1861, s 351, illustration (b)

^[14] Indian Penal Code 1861, s 352

^[15] Indian Penal Code 1861, s 358

^[16] Indian Penal Code 1861, s 352, explanation

^[17] Indian Penal Code 1861, s 323

^[18] Gour Hari Singh, The Penal Law Of India Vol 3 (11th edn, Law Publishers, Allahabad 1998)

^[19] Indian Penal Code 1861, s 353

^[20] Patar Munda v. State of Orissa AIR 1958 Ori 69

^[21] Rajendra Dutt v. State of Punjab (1993) Cr LJ 1025(P&H)

^[22] Abinash Chandra Aditya v. Ananda Chandra Pal (1904-31) Cal 424

^[23] Raghunath v. State (1956) Cr LJ 987

^[24] P Rama Rao v. State (1984) Cr LJ 27 (AP)

^[25] Indian Penal Code 1861, s 354

^[26] Vidyadharan v. State of Kerala AIR 2004 SC 536

^[27] Tarkeshwar Sahu v. State of Bihar (2006) 8 SCC 560

^[28] Sudesh Jhaku v. KCJ (1998) Cr LJ 2428(Del)

^[29] Ram Das v. State of West Bengal AIR 1954 SC 711

^[30] State of Punjab v. Major Singh AIR 1967 SC 63, para 18 & 19

^[31] Raju Pandurang Mahale v. State of Maharashtra AIR 2004 SC 1677

^[32] Administrator, Josgiri hospital v. Government of Kerala (2008) ILR 3 Ker 381

^[33] Aman Kumar v. State of Haryana AIR 2004 SC 1497

^[34] Kanwar Pal Singh Gill er Mrs Rupan Deol Bajaj v. State (Admn UT, Chandigarh) (2005) 6 SCC 161

^[35] State of Maharashtra v. Satyendra Dayal Khare (2004) Cr LJ 339 (Bom)

^[36] State of Madhya Pradesh v. Sheo Dayal AIR 1956 Nag 8

^[37] Indian Penal Code 1861, s 354B

^[38] Criminal Law (Amendment) Act 2013 (Act No 13 of 2013), s 6

^[39] Kailas v. State of Maharashtra (2011) 1 SCC 793

^[40] Indian Penal Code 1861, s 355

^[41] K I Vibhute, PSA Pillai: Criminal Law (12 edn, LexisNexis 2014)

^[42] Indian Penal Code 1861, s 356

^[43] Indian Penal Code 1861, s 357

^[44] Criminal Law (Amendment) Act 2013 (Act No 13 of 2013), s 6

^[45] Indian Penal Code 1861, s 354A

^[46] Indian Penal Code 1861, s 354A, cl (1)

^[47] Indian Penal Code 1861, s 354A, cl (1) & (2)

^[48] Indian Penal Code 1861, s 354C

^[49] Indian Penal Code 1861, s 354C, explanation 1

^[50] Indian Penal Code 1861, s 354C, explanation 2

^[51] Indian Penal Code 1861, s 354D

^[52] Indian Penal Code 1861, s 354D, cl (1)

^[53] Indian Penal Code 1861, s 354D, cl (2)

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