Tag: Legal Education

Assault and Battery

December 12, 2023August 19, 2024 toahostinger No Comments

Assault and Battery This article discusses assault and Battery, which fall under the category of torts. A tort is defined as a wrongdoing or an infringement of a right that results in legal obligation and is not covered by a contract. False incarceration is also a crime, as stated in “public nuisance is a crime as well as a tort”). The number of assault and Battery cases is rising daily. Introduction Assault and Battery fall under the tort, which is a civil violation classified as an intentional tort. The purposeful violation of another’s legally protected rights is referred to as an intentional tort. we could define assault as any action on the part of the defendant that immediately makes the plaintiff fear coming into contact with him. As a result, assault is committed when the defendant gives the plaintiff reason to believe that he will commit Battery against him through his actions. Typical assaults When someone points a pistol at someone else and threatens to shoot them, even if the victim later discovers the gun was not loaded or even real. The following are some characteristics of an assault: The act was meant to arouse fear of harmful or offensive contact. The act did arouse reasonable fear of such contact in the victim. A bodily threat gesture that is about to be made. A civil wrong known as Battery is defined as the willful and direct use of physical force against another person’s person or as the unlawful use of force against another person or their property, resulting in bodily harm or offensive contact. Battery attempts are considered assaults. An intentional tort is a Battery. Example Battery occurs when someone purposefully makes contact with another person that is harmful or objectionable. However, the Plaintiff is not liable if they granted explicit assent to the crime or inferred consent by taking part in a certain activity or circumstance (such as playing sports with the defendant).[i] Historical Background of Assault and Battery Modern tort law recognises certain “intentional torts,” or legal claims that can only be made when the defendant acted with the intent to harm the plaintiff or with a high degree of certainty that the plaintiff would be harmed. Several “classic” intentional torts, recognised as grounds of action for centuries, such as assault, Battery, false imprisonment, trespass to chattels, and trespass to real property, are examples of current intentional torts. Newer causes of action such as deliberate infliction of emotional distress, intentional interference with contracts, and intentional interference with prospective advantage are included in modern intentional torts. [ii] But there was no such thing as an “intentional tort” in tort law before the latter part of the nineteenth century. The actions for the “classic” intentional torts mentioned here were typically brought in trespass cases, which did not call for an intentional injury claim.2 The more recent intentional torts received very little recognition. Types of Domestic Assault and Battery Misdemeanor[iii] Domestic assault and Battery, defined as the purposeful and unlawful attempt, offer, and subsequent use of violence against a person with whom the offender currently has or formerly had a close, intimate relationship, constitutes the first offence. First-time domestic assault and Battery with a minor present – The same as above, but with a minor child in attendance at the time of the alleged event. First-time Domestic Battery and Assault of a Pregnant Woman is the same as Domestic Battery and Assault, but the alleged offence is committed with the knowledge that the victim is expecting a child. FELONY[iv] Domestic assault and Battery on a second or subsequent offence is the same as domestic assault and Battery on a first offence. It makes no difference if the “victim” is a different person or how minor the purported “injury” may be. Domestic assault and Battery in the presence of a minor on a second or subsequent occasion is the same as domestic assault and Battery on a first occasion in the presence of a minor. Additionally, exactly with the 2nd Offence Domestic Assault and Battery, the victim’s identity, the child involved, and the severity of the injuries is irrelevant. The second offence of domestic assault and Battery on a pregnant woman is the same as the first offence, with the exception that this is the second or subsequent offence. It should be highlighted that similar to the other charges, it is irrelevant whether or not the alleged victim is the same, whether or not the victim is pregnant, or how severe the injury is. It should be mentioned that the severity of the punishment is GREATLY raised IF the unborn child is hurt or the claimed mistreatment results in a miscarriage. Domestic Battery and strangulation assault[v] With the exception that the claimed crime involves some sort of strangulation, this is the same as domestic assault and Battery. The legal definition of strangulation in Oklahoma is as follows: “Strangulation means any kind of asphyxia, including but not limited to, closure of the (blood vessels)/(air passages)/nostrils/mouth as a result of external pressure on the head/neck.” It should be noted that even “attempted” strangulation can result in the filing of a criminal charge in addition to strangulation, which results in an automatic felony charge. Domestic Assault and Battery Causing Great Bodily Injury[vi] Domestic assault and Battery are involved here, however, the severity of the alleged victim’s injuries is taken into account. Great bodily injury, according to Oklahoman courts, is defined as any bone fracture OR any prolonged and evident disfigurement OR any prolonged (lengthy period) loss/impairment of function of a body part/organ OR that created a significant risk of death for the accused victim. Domestic Assault and Battery With Deadly Weapon[vii] Except that a legal “deadly” instrument or weapon was used in this domestic assault and Battery. You’ll see that four sorts of domestic assault and Battery fall under the misdemeanour category. We refer to these as predicate offences. No matter how serious the allegation or injury, if you ever enter a plea to one…

General Exceptions under IPC

November 4, 2023 toahostinger No Comments

General Exceptions under IPC According to the Indian Penal Code, Mens rea and actus reus are the two essential components of the commission of crime. Within this article, I have enumerated Chapter IV of IPC i.e. Exceptions. This article deals with the nature and the categories of the protection given to the criminal to make his offence a non-offence. I have also enumerated several case laws along with a brief explanation of the general defences. Sections 76 to 106 provide for the right of the people to protect their own life and limb and also of others. This provision gives a chance to accuse to prove himself non-guilty. Introduction The general exceptions/defences contained in Section 76-106 make a violation a non-violation. These are the defences which absolve the accused from any violation liability. This part has been framed to remove the repetition of exceptions in every penal clause and the legislature by S.6 IPC, 1860 enacted that all the definitions must be considered because of the exceptions. Application of Exceptions The court shall presume that there is not any presence of chances and it has to be proved by the accused. Because it is given in Section105 of the Indian Evidence Act that when a human has done any kind of violation, the pressure of showing the existence of scenarios of exceptions or within any special exception or proviso is upon him i.e., accused and the court shall assume the absence of such circumstances.[1] Investigation shall not confine merely to the acts done by a person. Depending on the facts and circumstances of each case, many other relevant facts have to be investigated in the light of expressions contained in “General Exceptions”. Then only will be able to confirm whether this act carried out by a human is a violation of law or not. The General Exceptions are discussed below: Mistake of Fact S.76 and 79 are based on the expression that Ignorance of fact is an excuse but ignorance of law is not an excuse. The characteristics are; A crime must be done by a person He must do that act by mistake of fact He must do it in good faith Queen v. Tolson[2] In this case, the petitioner tied the knot of marriage in 1880. In 1881, her husband went missing. Then believing her husband to be dead, she tied the knot of marriage with another male. Now, 11 months later her previous husband turned up and filed a case against her for the violation of bigamy. It was assumed that the belief of the death of her husband was a mistake of fact by the appellant and thus, she would not be charged with an offence of bigamy. Reg v. Fredrick Jones In this case, a loaded gun was not known to be loaded by the person handling it and he pressed a trigger. But, due to a gun being loaded a person died. It was held that it was a mistake of fact that the gun was not in a loaded situation with the knowledge of the person handling it. So, he was not held liable under Section 302 IPC. M.H.George v. State of Maharashtra[3] India recently passed a law prohibiting carrying that much gold through India. He was hiding the gold in his jacket, that too 34 kg of gold. It was held that even if M.H. George didn’t know the law it was no excuse, he was supposed to know it. Ignorance of law is no excuse and he was held liable under the relevant provision. State of Andhra Pradesh v. Venu Gopal[4] In this case, police arrested a person on suspicion that he had received some stolen property and was involved in housebreaking. The prosecution alleged the police for wrongful confinement and torture for taking out a confession by him. The trial court convicted the police. High Court acquitted giving them the defence of Section 79. Supreme Court said that ‘this view of High Court is wholly unwarranted in law’. Beating and torturing have no relation to the process of investigation. S.76 talks about bound by law and Section 79 talks about justified by law. But, in both sections, there must be bonafide intention i.e., good faith. That means, S.76 says about legal compulsion and Section 79 says about legal justification. Good Faith = Due care + attention. Judicial Acts Section 77 provides two types of protection to the judge. First, he is protected if he proceeds irregularly in the exercise of a power which the law gives him. A special immunity is provided to judges for the sake of fearlessness and independence of administration of justice. To avail of this immunity, the act must have been done by a judge in the discharge of his official duty, the deed done must be within his jurisdiction and the act must be performed in good faith. Accident The main objective for providing this defence is that there is no criminal intention (men’s rea) in the Accident if these 5 conditions are fulfilled: The act is done by accident or misfortune (An accident is such an incident that can’t be interpreted by an ordinary prudent man whereas misfortune is such an accident with harmful consequences). Lawful act is to be done Lawful acts must be done in a lawful manner Jageshwar v. Emperor[5] The accused was hitting the victim with his fists but accidentally hit his wife who was holding her 2-month-old child. The blow hit the head of the child which resulted in his death. It was held that even though the child was hit by accident, the act was not lawful. Thus, the accused would not be given protection under Section 80 IPC. Necessity Section 81 IPC is based on the doctrine of jus necessitates. The ingredients of Section 81 are the act must have been done under good faith and there must not be men’s rea. It is to be noted that there is no intention but knowledge and it…

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Tag: Legal Education

Assault and Battery

General Exceptions under IPC

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