(a) that the offence of gross indecency is not a lesser offence of rape within the contemplation of Section 217 Criminal Procedure Code which must be read together with Section 216 and (b) that the failure 35 to frame a new charge for the offence of gross indecency for which the Appellant was convicted after being discharged and acquitted of rape, breached the Appellants right to fair hearing. Admittedly, as argued by the learned Appellants Counsel, Section 217 by its wordings must be read together with Section 216 of the same Criminal Procedure Code. Section 217 Criminal Procedure Code provides: If in the case mentioned in Section 216 the accused is charged with one offence and it appears in evidence that he committed a different offence with which he might have been charged under the provisions of that Section, he may be convicted of the offence which he is shown to have committed although he was not charged with it. A reading together of Sections 216 and 217 shows that where from a single or series of acts committed by an accused person it is doubtful which of the several (related) offences the facts which may be 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 36 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.