proved may constitute, the accused person may be charged with all such several offences or any or more of such offences or may be charged in the alternative. If pursuant to Section 216 the accused is charged with one (of such) offences but it appears in evidence that he committed a different offence which he might have been charged with, he may be convicted of the offence which the evidence reveals he has committed though not so charged. In the instant case the Appellant was charged with the offence of rape but at the end of trial the most important ingredient of rape, penetration, was not proved. The argument for the Appellant is that the residue of the particulars of rape after deleting the unproved particulars of "penetration" and "sexual intercourse" do not constitute or form the particulars of the offence of gross indecency. Going by the combined reading of Sections 216, 217 and 218 of the Criminal Procedure Code, I disagree with the learned Counsel's submission. This is because the offence of rape is only an aggravated offence of gross indecency which includes sexual assault. It is the none proof of "penetration" of the Penis in the Vagina that reduced the offence to gross indecency, which is an offence in the class of sexual assault. Both the aggravated offence of rape and the reduced or lesser offence of gross indecency share the ingredient of sexual assault or unlawful tempering with female private part, and in the presence of the components of absence of consent or will, constitutes either the aggravated offence of rape or the reduced or lesser offence of indecent assault otherwise known as gross indecency. It thus follows that the residue of the particulars of rape after deleting the particulars of penetration in rape, constitutes a lesser offence of gross indecency and sufficiently satisfies the attempted guide of what constitutes a lesser offence as set out in TORHAMBA VS POLICE (Supra) or at least a reduced offence contemplated in Section 218 (2) of the same Criminal Procedure Code. In his commentary or annotation to Section 217 of the Criminal Procedure Code of Northern States of Nigeria 2nd Edition applicable in Kano State, the great author Jerry Richard Jones in his illustration of what constitutes a lesser offence under the said Section, gave 3 examples, one of which is that: "(c) A. is charged with rape and it is proved in evidence that he committed an act of gross indecency. A may be convicted of committing an act of gross indecency although he was not charged with that offence." This illustration by the great author, is very much in consonance with the decided cases referred to and with what I have tried to expound of the said provisions in this judgment. I therefore discountenance the Appellant's submission and hold that the conviction of the Appellant under Section 285 is within the contemplation of a lesser offence in Section 217 for which he could be convicted without the need to frame a new charge. Furthermore on the 2nd arm of the argument that failure to frame a new charge infringes on the Appellant's constitutional right to fair hearing, I find it difficult to subscribe to that submission and see it as an attempt to impute into the provisions of Sections 217 and 218 (2) of the