Judge which is based on evidence on record and reasonable inference from the evidence, is a finding of
fact and not a finding based on speculation as strenuously but erroneously argued by the learned
Appellant's Counsel." Per WAMBAI, J.C.A. (Pp. 27-28, Paras. E-B) (...read in context)

2. EVIDENCE - CONTRADICTION IN EVIDENCE: Whether court can speculate or proffer explanation when
there are contradictions in the testimonies of prosecution's witnesses on material facts and the
contradictions are not explained by the prosecution

"While it is trite that where there are contradictions in the testimonies of prosecution witnesses on a
material fact and the contradictions are not explained by the prosecution through any of its witnesses,
the Court should not speculate on or proffer the explanation for such contradictions and is precluded
from picking and choosing which it would believe, see MUKA & ORS VS THE STATE (1976) 9 & 10 SC 305
AT 325, whereas in this case the trial Judge adverted his mind to the contradiction/discrepancy but
found same satisfactorily explained, his findings based upon the explanation offered by the prosecution
witnesses cannot be said to be speculative nor can the contradiction be said to be unresolved." Per
WAMBAI, J.C.A. (Pp. 28-29, Paras. C-A) (...read in context)

3. CRIMINAL LAW AND PROCEDURE - CONVICTION FOR LESSER OFFENCE: Position of the law as regards
conviction for lesser offence

"The pith of the Appellant's contention on this issue is mainly two fold viz: (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 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 Appellant's right to fair hearing. Admittedly, as argued by the learned
Appellant's 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

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