JUDGMENT : G.B. Shah, J. 1. This appeal under section 374 of the Code of Criminal Procedure, 1973 ('the Code' for short) has been preferred by the appellants-original accused against the judgment and order dated 22/5/2000 passed by the learned Additional Sessions Judge, Mehsana, Camp at Patan, in Sessions 298 of 1996 whereby original accused No. 1 was convicted and sentenced to undergo RI for three years for the offence punishable under section 376 of Indian Penal Code (hereinafter referred to as "IPC" for short) and combined imprisonment for one year and to pay a fine of Rs. 25,000/- to be paid to the victim and in default of payment of fine, to suffer further RI for two years for the offence punishable under sections 323 and 354 of IPC. Original accused No. 2 was convicted and sentenced to undergo combined imprisonment for one year and to pay fine of Rs. 5,000/-, in default, to suffer further imprisonment for six months for abetting the offence committed by the accused No. 1. Sentences imposed on original accused No. 1 were ordered to run concurrently. Accused were given set off for the period undergone in jail. 2. It is pertinent to note that when the appeal was listed for final hearing on 10.2.2016, learned advocate, Mr. E.E. Saiyed for the appellants, sought time to contact his clients and matter was adjourned to 2.3.2016. On 2.3.2016, matter was adjourned to 4.3.2016 on which date, following order has been passed by this Court: "Learned advocate Mr. E.E. Saiyed for the appellants, has shown his inability to proceed with the matter as according to him, the appellants are not responding to the letter sent by him through RPAD. 1. Under the circumstances, bailable warrant be issued in the sum of Rs. 10,000/- each against the appellants, returnable on 30.3.2016." When the matter was listed on 30.3.2016, it was being adjourned from time to time. Thereafter, when it was listed on 15.7.2016, following order has been passed by this Court: "From the record, it appears from the letter dated 25/03/2016 of the District & Sessions Judge, Mahesana that the Bailable warrant against the appellants - Vaghari Dhanjibhai Raychandbhai and Vaghari Dharsibhai Kanjibhai (Original Accused) issued as per the order dated 04/03/2016 by this Court has been duly served. However, when the matter is called out today, neither the appellants nor any advocate appearing on their behalf are present. Hence, non-bailable warrant be issued against the appellants - original accused -Vaghari Dhanjibhai Raychandbhai and Vaghari Dharsibhai Kanjibhai making it returnable on 03/08/2016." In pursuance of non-bailable warrants issued by this Court vide order dated 15.7.2016, the appellants-original accused are presently in judicial custody. 3. Short facts of the prosecution case are that on 24.8.1996, when the complainant-victim along with her younger brother Ashok had gone for grazing their cattle (goat) in open place on Chandamana road, both the appellants-accused had also come there for grazing their cattle(buffalo). Gajiben, aunt of the victim, was also there at some distance for grazing her cattle(goat). While they were returning home in the evening at 4 O clock, her brother was ahead of the cattle and she was behind. At that time, accused No. 1-Dhanji caught hold of the victim, pushed her down and raped her while accused No. 2-Dharshi facilitated accused No. 1 in doing the said act. Thereafter, the accused left the place threatening the victim of dire consequences if the incident was reported to anybody. A complaint was thereafter lodged against the appellants-accused. Upon filing of the complaint, the police started investigation and at the end of investigation filed charge sheet in the Court. 3.1 As the offence was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions. Charge was framed against the accused which was read over and explained to the accused. The accused denied the charge and pleaded to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 3.2 To prove the guilt against the accused, prosecution examined eleven witnesses and also produced and relied upon several documentary evidence such as complaint, medical certificate of the victim, panchnama of place of incident, etc. On submission of closing pursis by the prosecution, further statements of the accused under Section 313 of the Code were recorded where they have stated that they were falsely implicated. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, impugned judgment and order as aforesaid in the earlier part of this judgment was delivered giving rise to prefer the present appeal. 4. Heard learned advocate, Mr. E.E. Saiyed, for the appellants-original accused and learned APP, Mr. Upon affording opportunity of hearing to the learned advocates appearing for the respective parties, impugned judgment and order as aforesaid in the earlier part of this judgment was delivered giving rise to prefer the present appeal. 4. Heard learned advocate, Mr. E.E. Saiyed, for the appellants-original accused and learned APP, Mr. K.L. Pandya, for the respondent-State. 5. Learned advocate, Mr. Saiyed for the appellants, drew attention of this Court on the depositions of almost all the witnesses including victim-P.W.9 at Exh. 49, brother of the victim-Ashokbhai Chhanabhai Vaghri-P.W.10 at Exh. 51, Dr. Amratlal Virabhai Patel-P.W. No. 6 at Exh. 39, Dr. Kantilal Ishwarlal Patel-P.W. No. 7 at Exh. 42 and Investigating Officer-Jagatsinh Gulabsinh Parmar-P.W. No. 11 at Exh. 52 as well as documents such as complaint at Exh. 50, FSL report at Exh. 54, etc. and submitted that the panch witnesses have not supported the case of the prosecution and were turned hostile. 5.1 He further submitted that there is a delay of three days in lodging the complaint inasmuch as the incident was alleged to have occurred on 24.8.1996 while the complaint was lodged by the victim on 26.8.1996. The reason tried to be explained for late filing of the complaint was that as per their custom, in such type of incident, they used to call meeting of community people but when the meeting was called by the community people, the accused did not remain present and therefore, complaint was filed on 26.8.1996 which, according to him, is a lame excuse and should not be believed and on the contrary, it has come on the record that if an amount of Rs. 25,000/- had been paid by the accused, no complaint would have been filed by the complainant. He, therefore, submitted that with a view to take advantage of securing the amount, complaint had been filed and hence, the delay in filing the complaint remained unexplained. 5.2 Referring the deposition of Dr. Kantilal Ishwarlal Patel-P.W. No. 7 at Exh. 42, Mr. Saiyed submitted that it has come on record that the age of the victim was between 14 and 16 years and considering the difference of two years here and there, it cannot be said that victim was minor at the time of incident when no other evidence, except the deposition of Dr. Kantilal Ishwarlal Patel-P.W. No. 7 at Exh. Saiyed submitted that it has come on record that the age of the victim was between 14 and 16 years and considering the difference of two years here and there, it cannot be said that victim was minor at the time of incident when no other evidence, except the deposition of Dr. Kantilal Ishwarlal Patel-P.W. No. 7 at Exh. 42 and ossification test report, are available on record so far as the age of the victim is concerned. In this regard, he took this Court through the deposition of victim-P.W.9 recorded at Exh. 49 wherein she had stated her age as 15 years at the time of recording her deposition in 2000 and if that be so, then, no verification appears to have been made by the trial court before administering oath to the victim and hence, the evidentiary value of her deposition appears to have been diminished because inspite of the fact that in the complaint, the victim had stated her age as 15 years and after four years, when her deposition was recorded, age shown by her was 15 years and hence, it is clear that victim is not telling the truth before the Court also. Moreover, the victim has specifically deposed that only Dr. Kantilal had examined her which is not true in view of the fact that it has come on record that prior to examination by Dr. Kantilal, the victim was examined and treated by Dr. Amratlal Virabhai Patel, who has been examined as P.W. No. 6 at Exh. 39 and it is said Dr. Amratlal who has referred the victim to General Hospital at Mehsana and thus, considering the said aspect, it is clear that the deposition of the victim is absolutely unbelievable as she has no regard for the truth. Taking further to the deposition of the victim, he submitted that it was stated by the victim that her father suffered fracture one month prior to the incident but said fact has not been disclosed by her before the Investigating Officer when her statement was recorded and considering her said conduct also, her evidence has become untrustworthy. Taking further to the deposition of the victim, he submitted that it was stated by the victim that her father suffered fracture one month prior to the incident but said fact has not been disclosed by her before the Investigating Officer when her statement was recorded and considering her said conduct also, her evidence has become untrustworthy. 5.3 He further submitted that when the alleged offence was not committed by the accused herein, there was no question of giving any fine amount to the victim and also there was no reason for the accused to remain present in the meeting called by the elderly members of their community. 5.4 He further submitted that if aforesaid evidence of the victim is perused along with the evidence of brother of the victim, then there appears vital contradictions on important aspects. Taking this Court through the cross-examination of brother of the victim-Ashokbhai Chhanabhai Vaghri recorded as P.W.10 at Exh. 51, he submitted that he has admitted that prior to giving deposition, he was made to understand what was to be deposed and thus, according to him, brother of the victim-Ashokbhai Chhanabhai Vaghri is a tutored witness and hence, his deposition cannot be relied upon as being untrustworthy and unbelievable. 5.5 He further submitted that Gajiben, who is the aunt of the victim, was also there for grazing the cattle when the victim was returning home, however, said Gajiben has not been examined for the reason best known to the prosecution. 5.6 He further took this Court through the deposition of Dr. Kantilal Ishwarlal Patel-P.W. No. 7 at Exh. 42 more particularly in history part and submitted that although the victim and the accused belonged to the same Village, she had not given names of the accused initially before the doctor as the two persons who committed rape on her but had subsequently given names of accused and looking to the said conduct of the accused also, it is clear that the present accused have been falsely implicated and therefore, the present appeal requires to be allowed. 5.7 So far as the role allegedly played by accused No. 2 is concerned, he submitted that as such, no evidence is forthcoming on the record to show that he had facilitated accused No. 1 in committing the alleged offence and therefore, benefit of doubt should be given to accused No. 2 and he is required to be acquitted. 6. Mr. K.L. Pandya, learned APP, on the other hand, submitted that the trial court has rightly appreciated the evidence appearing on record and the reasons assigned for conviction are reasonable and justifiable. Taking this Court through the evidence of complainant-victim-P.W.9 at Exh. 49, complaint at Exh. 50 and medical evidence, he submitted that the offence against the accused has been proved beyond reasonable doubt. Looking to the offence having proved against the accused, conviction and sentence imposed on the accused by the impugned judgment and order are just, legal and proper and is not required to be interfered in this appeal. 7. This Court has gone through oral as well as documentary evidence on record together with the findings arrived at by the trial court in the impugned judgment and order. 8. As far as the delay in filing the complaint is concerned, it is to be noted that it has been categorically stated by the victim-P.W.9 at Exh. 49 that after happening of the incident on 24.8.1996, a meeting was called by the elderly members of the community and thereafter, complaint was filed on 26.8.1996. It is to be noted that when such type of incident occurs in the Village, the victim would be reluctant to file complaint but it appears that due to indulgence of elderly members of the community and after giving thoughtful consideration related to issue, the same had been filed at the earliest opportunity. In the cross-examination of P.W. No. 9-victim at Exh. 49, it has been admitted that after the incident, she had talked to her father regarding the incident and immediately it was not decided to file the complaint. In the cross-examination of P.W. No. 9-victim at Exh. 49, it has been admitted that after the incident, she had talked to her father regarding the incident and immediately it was not decided to file the complaint. Initially, it was decided to sort out the issue as per the custom of the community, but in the meeting which was called by the elderly members of the community, accused did not remain present and accordingly, on the next day i.e. on 26.8.1996, the complaint was filed and therefore, this Court is of the opinion that said delay is not a delay at all and if at all it is considered to be a delay, it has been sufficiently and satisfactorily explained. 9. In the present case, the main witness namely, the victim-P.W.9 at Exh. 49 has narrated the incident in great detail regarding exact happening of the incident and has supported her complaint at Exh. 50. It appears from her evidence that the accused caught hold of the victim and accused No. 1 committed rape on the victim while accused No. 2 facilitated accused No. 1 in committing the said act. Said evidence of the victim is substantiated by FSL report at Exh. 54 and medical evidence of Dr. Amratlal Virabhai Patel-P.W. No. 6 at Exh. 39. When there is a specific and categorical statement of the victim herself on record along with the medical certificate indicating rape of the victim by accused No. 1, there is no necessity for any other evidence to corroborate the prosecution version. 10. Moreover, the theory of amount of Rs. 25,000/-, which was to be paid by the appellants-accused to the complainant as per the custom of their community, was not paid and hence, a false complaint had been filed, cannot be believed at all. On a bare perusal of the evidence on record, the said theory put forward by the learned advocate for the appellants appears to be unbelievable because, as discussed hereinabove, the victim had followed the custom of the community and hence, it cannot be said that just to get amount of Rs. 25,000/-, false complaint at Exh. 50 had been filed by the victim. 11. As regards the alleged vital contradictions on vital aspects as pointed out by the learned advocate for the appellants between the evidence of brother of the victim-Ashokbhai Chhanabhai Vaghri recorded as P.W.10 at Exh. 25,000/-, false complaint at Exh. 50 had been filed by the victim. 11. As regards the alleged vital contradictions on vital aspects as pointed out by the learned advocate for the appellants between the evidence of brother of the victim-Ashokbhai Chhanabhai Vaghri recorded as P.W.10 at Exh. 51 and the evidence of the victim is concerned, it is to be noted that said contradictions are trivial in nature and cannot be said to be vital ones as discussed at length by the trial court. At this juncture, it is to be noted that she has not levelled allegation of rape against accused No. 2 but has levelled allegation of rape only against accused No. 1. This conduct of the victim clearly shows that she is telling the truth and therefore, there was no reason to disbelieve her testimony especially when it appears to be trustworthy and convincing. It has been vehemently argued by the learned advocate for the appellants that though the victim has deposed that her father was having fracture, but said aspect has not been told by her to I.O. and hence, no investigation had been carried out to know whether her father had sustained fracture injury or not. In my view, it cannot be said to be suppression of material facts and therefore, if at all the said facts had not been disclosed by her initially, it would not be prejudicial to the appellants-original accused. It appears from certificate at Exh. 40 issued by the Medical Officer, Patan, that the victim had sustained following injuries: "N/o injuries and rape No(1) An abrasion of 1.00cmx0.5cm over right hand posterity. No(2) Tenderness over left shoulder region. Pt. Primarily treated at gen. hosp. Patan on 26/8/96 & referred to gen. hosp. Mehsana for gynec exam for rape and further management." Referring to deposition of P.W. No. 7-Dr. Kantilal Ishwarlal Patel at Exh. 42, by ossification test, the age of the victim opined by doctor was between 14 and 15 years and as submitted by learned advocate for the appellants, even if there is a difference of two years here and there, then also, the victim was below 18 years and in my view, this aspect was dealt with at length by the trial court and nothing substantial has been argued by learned advocate for the appellants. 12. 12. Reference can be had to a decision of the Hon'ble Supreme Court in the case of Vijay alias Chinee v. State of Madhya Pradesh reported in (2010)8 Supreme Court Cases page 191 wherein it has been held that conviction can be based solely on the evidence of the victim, if found to be trustworthy and reliable. It has been held from paragraph Nos. 9 to 14 as under: "9. In State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 , this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under:- "16. A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence." 10. In State of U.P. v. Pappu @ Yunus & Anr., AIR 2005 SC 1248 , this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under:- "It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do." 11. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393 , this Court held that in cases involving sexual harassment, molestation etc. Assurance, short of corroboration as understood in the context of an accomplice, would do." 11. In State of Punjab v. Gurmit Singh & Ors., AIR 1996 SC 1393 , this Court held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under:- "The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix ...... The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case ........ In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case ........ Seeking corroboration of her statement before replying upon the same as a rule, in such cases, amounts to adding insult to injury............Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ** ** ** ** 21. .... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 12. In State of Orissa v. Thakara Besra & Anr., AIR 2002 SC 1963 , this Court held that rape is not mere a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. 13. In State of Himachal Pradesh v. Raghubir Singh, (1993) 2 SCC 622 , this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. 13. In State of Himachal Pradesh v. Raghubir Singh, (1993) 2 SCC 622 , this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. 14. A similar view has been reiterated by this Court in Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9 , placing reliance on earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 . 15. Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix." 13. It is to be noted that in the case on hand, the victim wholly supported her complaint in her evidence. She is giving the true and correct version of the incident and therefore, her evidence can be said to be trustworthy and reliable and hence, in view of the principle laid down in the aforesaid reported case, when evidence of victim is found to be convincing and reliable, no corroboration of any other evidence is required for basing conviction. Further, her version is fully supported by FSL report at Exh. 54 also. 14. It was, therefore, held by the trial court that it was accused No. 1 who committed the offence charged against him and the role attributed to accused No. 2 was facilitating accused No. 1 in committing the said offence. It appears that the trial court has discussed the evidence in great detail including the medical evidence and by an elaborate discussion of the entire oral and documentary evidence in true perspective has delivered the impugned judgment and order of conviction. This Court is in complete agreement with the reasons adopted by and the conclusions arrived at by the learned trial court in the impugned judgment so far as the conviction of the present appellants-accused is concerned. 15. This Court is in complete agreement with the reasons adopted by and the conclusions arrived at by the learned trial court in the impugned judgment so far as the conviction of the present appellants-accused is concerned. 15. Looking to the role alleged to have been proved against the accused No. 1, it was a fit case wherein the accused No. 1 should have been appropriately sentenced having convicted him for the offence punishable under section 376 of IPC. In order to have a deterrent effect in the society, principle of proportionality between the crime and punishment should have been considered by the trial court while imposing sentence and therefore, this Court would have enhanced sentence imposed on the accused No. 1. However, considering the long lapse of time since happening of the incident, the sentence imposed on accused No. 1 is not interfered with. 16. Considering the nature of offence and role alleged to have been played and proved against the accused No. 2, I am of the opinion that interest of justice would be served if the sentence already undergone by him in jail is treated to be the sufficient sentence. Hence, the present appeal deserves to be partly allowed qua original accused No. 2 while the appeal deserves to be dismissed qua original accused No. 1. 17. The appeal qua original accused No. 1 is dismissed. Original accused No. 1 is in jail in pursuance of non-bailable warrant issued by this Court vide order dated 15.7.2016. Said non-bailable warrant shall stand cancelled and he is directed to undergo the remaining period of sentence imposed upon him. The appeal qua original accused No. 2 is partly allowed. While confirming conviction, combined sentence of one year imprisonment imposed on original accused No. 2 is ordered to be reduced to the period already undergone by him in jail. Original accused No. 2 is also in jail in pursuance of non-bailable warrant issued by this Court vide order dated 15.7.2016. Said non-bailable warrant shall stand cancelled. He shall be set at liberty forthwith, if not required in any other case. The impugned judgment and order dated 22/5/2000 passed by the learned Additional Sessions Judge, Mehsana, Camp at Patan in Sessions 298 of 1996 is accordingly modified to the aforesaid extent. Remaining part of the impugned judgment is unaltered. Record and proceedings are ordered to be sent back to the court below forthwith.