Nothing in the file allows the Court to be convinced that there was effectively a sexual conjunction between the accused MAKIESE Héritier and the victim, in the absence of a medical report on file or of serious indications of guilt; The first Judge was wrong in considering that the fact that the accused and the victim's statements agree about them having spent the night in the living room constitutes grave, precise, and agreeing presumption against the accused; In fact, the two parties being members of the same family and living in the same houses could not but have the same descriptions of the grounds and their habits; Such resemblances cannot be taken as grave presumptions, agreeing elements and lead to a conviction; Invited both before the first Judge and the Court, Madame Mamie MASSAMBA did not responded positively to the Court's invitation to clarify the facts awarded to the accused; It was found that when a Court does not find itself in the presence of a fact that has been sufficiently proven in law, it shall declare that the accusation lack material grounds (1st Instance Elis, 19th July II, jur.Congo 1912, p.213); It was equally found that since there is no evidence, the Judge had the obligation to rule according to the law, or to acquit, he cannot substitute himself to the evidence by virtue of the personal knowledge that he might have of the case and he cannot adjourn the proceedings subject to the appearance of ulterior proof (Elis, 31st March 1924, 1st Inst. Elis, 19th July 1911, jur. And law of the Congo, 192, p. 213); the material element of sexual conjunction not established, the Court finds the analysis of the other constitutive elements superfluous; The Court shall thus find not established the offense of rape such as it formulated and awarded to the accused and shall acquit him after the previous judgement; the fees shall be placed under the responsibility of the Public Treasury; THEREFORE; The Court, judiciary section; Ruling After a public and due hearing of both parties regarding the accused; Having heard the Prosecution; Receives the appeal of the accused and declares it founded; Consequently nullifies the previous judgement in all its dispositions; Ruling again and doing what the first Judge should have done, declares not-established both in fact and in law the accusation of rape such as it was formulated and awarded to the accused MAKIESE Hèritier, acquits him and releases him from all charges without costs; places the fees under the responsibility of the Public Treasury; Thus gathered and pronounced by the Appeals Court of Kinshasa/Gombe, in its public hearing of the 20th May 2011, in which were seated the Magistrates LIAM BI MOPEPE, President of the Chamber, ODIO NON DE and ILUNGA TSHAMAKEJI, Advisors, in the presence of the Prosecution represented by the magistrate MASSIALA KHAZA and with the assistance of Mr. MAKENGELE, the Court's Clerk. The Clerk The Advisors The President